Blandon and Australian Capital Territory (Compensation)
[2019] AATA 3277
•5 September 2019
Blandon and Australian Capital Territory (Compensation) [2019] AATA 3277 (5 September 2019)
Division: GENERAL DIVISION
File Number(s): 2016/2001 and 2017/2388
Re:Allan Blandon
APPLICANT
Australian Capital TerritoryAnd
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries AO
Date:5 September 2019
Place:Canberra
The Tribunal:
(a)affirms the reviewable decision of 21 March 2016 assessing permanent impairment for the accepted carpal fracture condition under s 24 of the Act at 18%;
(b)sets aside the reviewable decision of 3 March 2017 and instead decides that the Australian Capital Territory is liable to pay compensation to Mr Blandon for permanent impairment and non-economic loss under ss 24 and 27 in respect of the accepted chronic pain syndrome condition, with the degree of permanent impairment pursuant to s 24(5) being 10%.
.......................................................................
Deputy President Gary Humphries AO
Catchwords
COMPENSATION – chronic pain syndrome – whether Mr Blandon suffers from claimed condition – whether Mr Blandon’s chronic pain syndrome condition results in permanent impairment – nature of assessment of whole person impairment considered – manner of assessment of impairments pursuant to s 24 of the Safety, Rehabilitation and Compensation Act 1988 – one decision under review affirmed, second decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988Cases
Canute v Comcare [2006] HCA 47
Comcare v Broadhurst [2011] FCAFC 39
Comcare v Lofts [2013] FCA 1197
Comcare v Wuth[2018] FCAFC 13
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Portors v Comcare [2018] FCA 914
Secondary Materials
American Medical Association, Guide to the Evaluation of Permanent Impairment (5th Edition)
Comcare, Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Deputy President Gary Humphries AO
5 September 2019
INTRODUCTION
Mr Allan Blandon was at work as a warehouse manager for ACT Health on 14 May 2010 when he fell and broke his left wrist. Comcare subsequently accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for three conditions arising from that incident, including one for fracture of carpal bones (left) and another for chronic pain syndrome.[1]
[1] In this decision, italicised text is generally used to indicate direct quotations.
Presently before the Tribunal are two applications for merits review, one relating to each of those accepted conditions. The first of these (2016/2001) seeks review of Comcare’s determination that Mr Blandon is entitled to compensation under s 24 for whole person impairment (WPI) of 18% in relation to the fracture of carpal bones (left) condition. In the second (2017/2388) he challenges a decision denying compensation under ss 24 and 27 in relation to the condition of chronic pain syndrome.
These proceedings have taken, at times, an eventful course. At the initial hearing on 27 August 2018 before me and Member Dr Wilkins, the Tribunal considered an application by Comcare to dismiss Mr Blandon’s application under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 on the basis that it had no reasonable prospect of success. The Tribunal decided to refuse that application, and the hearing proceeded. Several medical reports were tendered during the hearing, but neither party called medical experts to give viva voce evidence. The intention of the parties evinced by this approach was that the correct or preferable decision in these applications would be clear to the Tribunal from a perusal of the doctors’ reports.
The hearing was completed that day and closing submissions were made. The following day, counsel for Mr Blandon sought permission to reopen his case, for the purpose of calling the medical experts to give live evidence. It was contended that the position of the experts on the key issues before the Tribunal was unclear. After hearing the parties, the Tribunal decided on 18 September 2018 to accede to this request. It later published a decision giving its reasons: Blandon and Comcare [2018] AATA 4614.
In the meantime, however, a conflict of interest arose for Dr Wilkins and he made the decision to take no further part in the proceedings. Other than by asking some questions during the hearing on 27 August 2018, he has played no part in the preparation of this decision.
The hearing was resumed on 18-19 December 2018, at which time three medical experts gave live evidence. In addition, covert video surveillance of Mr Blandon obtained by Comcare was tendered.
On 1 March 2019 the Australian Capital Territory became a licensee under the Act, and thus the respondent in these proceedings in lieu of Comcare which occupied that role at the time of the hearing.
CLAIMS HISTORY
The history of Mr Blandon’s claims for workers compensation is long and complex; accordingly I now set out the relevant parts of that history.
Following his fall at work on 14 May 2010 when he broke his left wrist, Mr Blandon made a workers compensation claim to Comcare for scaphoid/scapholunate rupture on 20 August 2010. On 20 September 2010 Comcare accepted liability under s 14 for fracture of carpal bone(s) (left) (lunate). In the following years Mr Blandon had several procedures on his wrist to treat the effects of the fracture. These included:
(c)a left wrist arthrodesis and endoscopic carpal tunnel release on 28 October 2010;
(d)elective dissection of the radial nerve on 21 May 2012;
(e)trapeziectomy and ligament reconstruction surgery on 30 August 2012.
On 9 July 2013 Mr Blandon lodged a claim with Comcare for aggravation of wrist fracture. In the claim form he described the parts of his body affected by the injury as left wrist, arm, shoulder and neck. On 10 January 2014 a delegate of Comcare accepted liability for a range of conditions, namely injury to median nerve (left), osteoarthrosis – localised – hand (left), injury to radial nerve (left) and unspecified disorder of muscle, ligament, & fascia (left FCR tendinosis). Under the heading Causation in the reasons for her decision the delegate quoted s 4(3) of the Act, and then referred to the assertion by Mr Blandon’s lawyers that your original wrist injury was aggravated as a result of treatment at the Fracture Clinic of the Canberra Hospital. She then wrote:
Therefore for compensation to be awarded I must be satisfied that your aggravated condition developed as a result of subsequent treatment at the Fracture Clinic of the Canberra Hospital.
… I am satisfied that you underwent a series of medical treatments and surgeries stemming from your compensable injury.
… I am satisfied that you have sustained a number of injuries that were caused by medical treatment for your previous claim for compensation…
On 11 March 2015 Mr Blandon lodged a claim for permanent impairment and non-economic loss under ss 24 and 27. Comcare made a determination on 10 August 2015 assessing his whole person impairment at 18%. Following a request for reconsideration, on 19 October 2015 Comcare affirmed the determination of 10 August 2015. The delegate declined to consider any impairment to the shoulder or elbow on the basis that liability had not been accepted for these conditions.
On 26 October 2015 Mr Blandon’s solicitor wrote to Comcare asking it to make a new determination for permanent impairment [which] covers all associated problems to do with the shoulder and elbow including the Chronic Regional Pain Syndrome. On 17 February 2016 Comcare made a determination denying liability for Left elbow and left shoulder under section 14…. Mr Blandon’s solicitor lodged an application for reconsideration of this decision on 23 February 2016.
On 21 March 2016 Comcare made a reviewable decision affirming both the denial of secondary conditions of a left elbow and left shoulder injury (the 17 February 2016 determination) and the determination of 10 August 2015 assessing whole person impairment for the accepted carpal fracture at 18%. In her reasons for the latter decision, the Comcare delegate indicated that she accepted medical advice that Tables 9.9.1a and 9.9.2b of the Comcare Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (the Comcare Guide) were the appropriate basis on which to calculate WPI, and this led to an assessment of 18%. This reviewable decision was made notwithstanding that it appears to be substantially the same as the reviewable decision of 19 October 2015.
Mr Blandon then sought merits review by this Tribunal of both these decisions in an application dated 16 April 2016. The application with respect to the affirmation of WPI at 18% is encapsulated in matter 2016/2001.
Presumably on the basis of the letter from Mr Blandon’s solicitor of 26 October 2015, Comcare considered his claim for a secondary pain condition in respect of the carpal fracture. On 23 June 2016 Comcare made a determination accepting liability under s 14 for Chronic Pain Syndrome. On 18 October 2016 Mr Blandon withdrew his application for merits review of the decision denying liability for left elbow and shoulder conditions on the basis, apparently, of an assurance from Comcare that the accepted Chronic Pain Syndrome included liability for the pain in the left wrist, elbow and shoulder. The correspondence between the parties relating to that assurance was not put before the Tribunal.
On 28 November 2016 Mr Blandon lodged an application for permanent impairment and non-economic loss under ss 24 and 27 in respect of his Chronic Pain Syndrome. On 17 January 2017 Comcare denied this claim on the basis that chronic pain conditions are unable to be assessed under the guide. Following a request for reconsideration that decision was affirmed on 3 March 2017, in the absence of any persuasive medical evidence establishing that your chronic pain syndrome results in an impairment that is permanent and is at least 10% of whole person impairment when assessed under the relevant guide… Mr Blandon made application to the Tribunal for merits review of this decision on 26 April 2017 (matter 2017/2388).
FACTS
Mr Blandon gave evidence at the hearings. He told the Tribunal he had had four surgical procedures on his left wrist following his accident in May 2010. In one of those operations, in 2012, his wrist was fused. Describing the present condition of his wrist, he said:
…my thumb and forefinger are numb all the time. Up my arm gets numb, sore, goes into spasm, it goes up my arm, in the side of neck. I get migraine headaches…
He told the Tribunal he is left hand dominant, but is ambidextrous. The condition affected his fine motor skills; he was unable to hold anything tiny, such as a needle or the arm of a teacup. He said he can’t open things, such as a jar. He said:
I don’t use my left arm because of the pain that I get involved in my arm and my hand. So I try to not use it. I try to take all the pressure or all the weights and that on my right arm or right hand.
He answered various questions regarding the capacity of his left hand and arm:
Moving from your fine motor skills in your hand to the power in your hand, can you tell the tribunal about your capacity to grip things like say a jar of vegemite or something?‑‑‑No, I can’t grip with my left hand. I can hold it as long as I don’t put pressure on it, then I have to change arms, change hands to either open something or – I haven’t got the strength or the pressure with my left hand to try and open anything…
With respect to going shopping, he said:
Yes, I just guide – I guide the trolley with my left hand. I push with my right and guide it with my left.
Yes, and, then, so any heavy shopping bags you’re carrying with your right hand?‑‑‑Yes, or the wife carries.
Yes, and you can – can you carry anything with your left hand, any shopping bags? I suppose if you use those other three fingers, is that right?‑‑‑Yes, if I use the last three fingers I can.
Okay?‑‑‑But not heavy. Nothing heavy.
…
DR WILKINS: If you pick things up in your left hand, you’ve talked before about supporting a cup of tea on your thigh, can you hold it?‑‑‑Not for a long time.
Can you hold it long enough to take a sip?‑‑‑I shake.
You shake. Okay. Could you pick up a carton of milk?‑‑‑I usually do it with my right.
Could you?‑‑‑Most probably but then I’d shake and either drop it or, you know, swap hands.
Rotating his left arm would lead to pain in the shoulder and neck. He was able to bend his elbow, but with pain. This incapacity had led him to stop playing a number of sports, including indoor cricket, touch football and trail bike riding. He is able to drive a car, mainly using his right hand. He changes gear in his manual car with three fingers. He is able to assist with food preparation, cooking, vacuuming and laundering.
He said that no doctor had been able to describe precisely what was wrong with his shoulder, and none had prescribed exercise physiology or physiotherapy for it. His shoulder and elbow had been hurting ever since the operations; he had been prescribed high-powered drugs for that pain. He was able to rotate his shoulder and elbow fully, but with pain.
He was cross-examined about his examination by Dr A Cairns, an orthopaedic surgeon, in July 2014. He agreed that he leaned on his left elbow that day because he had severe pain. He was able to lift his left arm above his head, but reported pain at doing so.
He agreed that Prof Allan Molloy, pain management specialist, had recommended he attend a pain clinic. When asked why he had not done so, he said he had assumed Comcare would advise him if it was prepared to pay for the clinic, and since it had not done so he assumed it was unwilling. He denied that a failure to chase up Comcare for this service indicated a lack of interest in ameliorating his pain.
He said he could mow the lawn, pushing with his right hand and resting the left hand on the handle. However, doing so hurts his shoulder.
Following the hearing on 27 August 2018, and the Tribunal’s decision to reopen the proceedings, Mr Blandon was subject to covert surveillance by Comcare over a ten day period from 26 October to 4 November 2018 at various locations, including outside his home in Canberra. Footage of the surveillance was later tendered. As Comcare summarised it in a submission:
Mr Blandon was sighted active on 9 of those 10 days and was observed undertaking a number of activities mobilising his left and right arms, elbows and shoulders. The surveillance showed Mr Blandon:
a)Mowing the lawn with a lawnmower on a sloped block using both of his hands
b)Using his left hand to hold a garbage bag to catch grass clippings
c)Using a whipper snipper by operating it with both of his hands
d)Using a broom to sweep the driveway
e)Using his left hand to hold and lift grass clippings
f)Carrying groceries from his vehicle to inside his home using both hands
g)Checking his letterbox while holding two shopping bags in his left hand
h)Leaning on his vehicle on his left side
i)Winding up a garden hose in his left hand before packing it away
j)Carrying two sets of car covers in his left hand.
Mr Blandon was examined again when the hearing was reopened on 18 December 2018. He told the Tribunal he was aware he was under surveillance because of the presence of a strange car in his street. He denied that he had exaggerated the extent of his disability to either Prof Champion or Dr Eaton.
MEDICAL EVIDENCE
A number of medical reports were tendered. Three doctors were called to give live evidence before the Tribunal:
·For Mr Blandon: Dr Garth Eaton, Occupational Physician, and Prof David Champion, Consultant Physician in Rheumatology, Musculoskeletal Medicine and Pain Medicine; and
·For Comcare: Dr David Gorman, Consultant General Physician, Pain Management Specialist and Medical Oncologist.
The medical evidence is summarised below.
Doctors who did not appear
Dr W Bruce Conolly, Associate Professor of Hand Surgery
Three reports of Dr Conolly were tendered. The first, dated 15 July 2013, noted Mr Blandon’s complaint of residual arm pain. In addition to reporting on his accepted wrist condition, Dr Conolly noted that the remainder of his upper limb functioned well.
In his third report, dated 4 September 2013, Dr Conolly discussed the inadequate initial diagnosis of Mr Blandon’s condition and the delay of treatment.
Dr G G Griffith, Consultant Surgeon
Dr Griffith provided a report dated 30 November 2013 in which he noted that Mr Blandon described throbbing myalgia in his arm as far as the shoulder and cervical region. He assessed him as suffering from a permanent impairment of 14% utilising the Comcare Guide. When utilising the American Medical Association’s Guide to the Evaluation of Permanent Impairment, 5th Edition (the AMA Guide), Dr Griffith assessed a 20% permanent impairment when using conversion Table 16-3. However, in a further report dated 24 March 2014, he corrected the impairment rating under the Comcare Guide to 23%.
Dr A Cairns, Consultant Orthopaedic Surgeon
In his report dated 16 July 2014, Dr Cairns observed in Mr Blandon an apparent chronic, non-specific regional pain dysfunction syndrome and manifestations of biopsychosocial potentiation in his presentation. Dr Cairns noted the following:
He is able to drive a motor vehicle, indicating that he employs the 4th and 5th fingers on the left hand…He was seen to consistently lean on the arm of the chair on his left elbow throughout provision of his history, and there was no apparent restriction of movement of his left upper limb when removing his upper garments to allow physical examination….Apart from the subjective report of an area of numbness involving the left index, thumb and forearm, there were no other neurologic abnormalities apparent in either upper limb….he consistently leaned to the left, demonstrating a full range of pain-free movement at the right shoulder…Active movements of the left shoulder undertaken with grimacing and contortion of abnormal pain behaviour were estimated as flexion 160◦ extension 50◦…Movements of flexion and extension of the left elbow were comparable to the right…Serial grip strength measurements averaged 47kg on the right as compared to 13.5kg on the left…there was minimal reduction in power of pincer pinch strength of the thumb and index fingers…he writes and plays tennis with his “ambidextrous” right upper limb.
Dr David McNicol, Consultant Orthopaedic Surgeon
Two reports of Dr McNicol were tendered. In one dated 25 June 2015, he diagnosed Mr Blandon as suffering from:
(i)Rupture of the scaphoid lunate ligament of the left wrist;
(ii)Radiocarpal arthritis necessitating wrist fusion;
(iii)Degenerative changes of the carpometacarpal joint with left trapeziectomy and ligament reconstructions;
(iv)Chronic regional pain syndrome.
Utilising a goniometer, Dr McNicol assessed a 20% permanent impairment under Table16-3 of the AMA Guide. This produced an assessment of 18% for the left wrist and 3% for the left thumb. However, in a supplementary report dated 23 July 2015 he revised his assessment of permanent impairment based on the fact that Mr Blandon had in fact undergone an arthrodesis of the wrist, as opposed to an arthroplasty. Using Table 9.9 of the Comcare Guide, and noting that Mr Blandon’s wrist is fused, he gave a 13% impairment for loss of wrist flexion extension and a 5% impairment for loss of radial and ulnar deviation, giving an overall assessment of 18% permanent impairment.
Associate Professor Allan Molloy, consultant anaesthetist and pain management specialist
Prof Molloy said, in a report dated 17 March 2016, that Mr Blandon was reporting sufficient symptoms to meet the diagnostic criteria for chronic pain syndrome, and was likely to continue to experience chronic pain. He opined:
On examination, he had moderate restriction of movements of his cervical spine and was reluctant to move to the left. This would precipitate his headaches. His movements of the left shoulder were somewhat restricted to flexion of 160o, abduction of 70 o, internal rotation to the iliac crest. In the right shoulder they were normal. He had normal power in both upper limbs. He reports a sensation that the whole hand feels numb and aching. There was no evidence of sweating, swelling or colour change today. There was no evidence of tremor. The wrist was fixed with no flexion-extension…
The most beneficial treatment for his condition would be attendance at a cognitive behavioural pain management program such as the ADAPT program at Royal North Shore Hospital with an aim of improving mood, increasing activity and reduced reliance on medication…
Doctors who gave live evidence
Dr Garth Eaton, Occupational Physician
Dr Eaton provided a report dated 24 August 2016. In it he observed:
[Mr Blandon] reports ongoing episodes of increased muscle tension and soreness in the neck and left shoulder which led onto cervicogenic headaches. He has considerable asymmetric tightness on the left side of the neck, shoulder. He has had no X-rays, scans or investigations of the neck left shoulder or left elbow. He said when his pain is severe all movements are significantly reduced. He appears to be very fear avoidant about doing any activity involving his left upper limb and shoulder.
Mr Blandon showed me some photographs which demonstrated his left hand to be extremely red and swollen…
Left shoulder movements were markedly restricted in abduction to 100o. Shoulder muscles were extremely tight towards the end of range of motion.
Left elbow movements were full but very tight and uncomfortable suggestive of a tendinopathy.
Left wrist movements were extremely stiff with zero flexion, zero extension, zero radial and ulnar deviation. The scars of the multiple surgical procedures were evident.
There was reduced sensation to pin prick of the left thumb. Thumb movements were mildly restricted.
However temperature of the skin and colour were normal in the left hand and wrist. There was no swelling evident. His left wrist was very stiff. There were no definite signs of complex regional pain syndrome type 1.
Upper limb examination revealed normal reflexes and sensation. Grip strength was normal on the right at 34.5 kg and significantly reduced at 4.6 kg on the left. Mr Blandon is left hand dominant…
There has been no investigations [sic] to diagnose any underlying structural pathology in the neck, left shoulder and elbow. The pain and dysfunction is likely to be due to the chronic regional upper limb pain syndrome. However there were no obvious specific diagnostic features of CRPS 1 when I examined Mr Blandon recently. …I am unable to assess permanent impairment with regard to the neck, shoulder and elbow which may be related to his pain condition which is not rateable. Secondary musculoligamentous strain of the neck, left shoulder and left elbow may have occurred due to the adoption of an antalgic posture of the left upper limb due to chronic pain and dysfunction over an extended period. Ideally specific objective diagnoses of underlying structural injury to the neck, elbow and shoulder would have to be established to consider the relationship to the work related accident and the initial injuries sustained. It should be noted Mr Blandon reported in his initial consultation with me in 2012 that he sustained left shoulder pain in the subject accident. However all emphasis with regard to investigation and treatment was placed on the more severe wrist injury.
Dr Eaton assessed Mr Blandon as suffering an 18% permanent impairment in relation to his left wrist condition. He did not assess the left elbow and shoulder condition.
On 31 August 2016 Mr Chen of Capital Lawyers briefed Dr Eaton as follows:
We note that you have made an assessment in your report of our client’s left wrist based on Table 9.9; however on our instructions after the initial wrist injury which resulted in the wrist being fused, our client developed pain and injury to the left side of his body including elbow, arm, neck and shoulder and fingers. He also has ongoing headaches.
We therefore request that you provide an assessment in respect of the [sic] each and every injury that our client has developed as a result of the initial injury. Copies of the relevant Tables including Table 9.8 for fingers and hands, Table 9.9 for wrists, Table 9.10 for elbows, Table 9.11 for shoulders as well as Tables 9.13, 9.14 and 9.15 if applicable for neurological and outer impairments if applicable [sic].
Dr Eaton responded in a letter dated 25 September 2016:
As I have discussed on page 5 of my report dated 24 August 2016 it is difficult to assess permanent impairment resulting from essentially a chronic regional neck, shoulder and upper limb pain disorder. There has been no underlying structural injury/pathology objectively diagnosed in the affected areas to date other than subjective pain and dysfunction. Pain is not rateable except for Complex Regional Pain Disorder. While Mr Blandon probably suffered with this disorder in the earlier stages there were no obvious diagnostic features of this condition when I examined him. It is a requirement that several features of this condition must be present on the day of assessment for a level of permanent impairment to be assessed.
Presumptively there has been increased musculoligamentous tension/strain of his neck, left shoulder and left elbow due to prolonged antalgic posture of the left upper limb but this does not refer to definite additional underlying structural injury but probable secondary effects of the chronic left wrist injury and subsequent chronic regional pain condition. I have no doubt that Mr Blandon has genuine significant impairment in the nominated areas however the prescriptive narrow Comcare Guide Edition 2.1 makes it difficult to rate his reported symptoms and dysfunction for permanent impairment.
Following Mr Blandon’s successful application to reopen the hearing, two further reports of Dr Eaton were tendered. In the first, dated 7 December 2018, he commented:
There is likely to have been a component of persistent nociceptive tissue damage pain due to the injuries sustained in his left wrist and the development of post traumatic osteoarthritis. Mr Blandon also likely developed chronic left upper limb complex regional pain syndrome/chronic left sided cervicobrachial pain disorder based on the history provided and the description of the symptoms and signs. He showed me a photograph of a very swollen red left hand which was consistent with some features of this condition. However as I stated in my report dated 24 August 2016, when I examined Mr Blandon on that date there were no obvious specific clinical signs of CRPS1 evident.
In my report dated 24 August 2016 I mentioned ‘secondary musculoligamentous strain of the neck, left shoulder and left elbow may have occurred due to the adoption of antalgic postures of the left upper limb due to chronic pain and dysfunction over an extended period. There was very striking severe asymmetric tightness of the muscles of the left side of the neck and of the left trapezius muscle evident on examination. It should be noted no underlying specific objective diagnoses of underlying structural injury has been established in these areas. No specific imaging has been performed.
The longer chronic pain and dysfunction persists the more likely it is to be permanent. When Mr Blandon initially consulted me on 16 October 2012 he had continued to suffer from the left upper limb pain and dysfunction, as described in the various reports. It is now more than 8 years since the initial accident occurred and as severe chronic pain and dysfunction in the left upper limb has continued, it is likely to be permanent.
After confirming his assessment of whole person impairment of 18%, Dr Eaton commented on the video surveillance evidence which had been forwarded to him:
I also concur with Dr Gorman’s supplementary report. However it did seem to me that Mr Blandon was not holding the mower handle tightly with his left hand. In my opinion he did not clearly demonstrate he was performing any activities with a tight grip of his left hand. Overall Mr Blandon appears to function well using his left upper limb for day to day activities despite his left wrist injuries and fusion. I note again he is left hand dominant. However I agree with Dr Gorman that the normal day to day activities using the left upper limb depicted in the surveillance material is not inconsistent with the clinical findings.
The explanatory sentences provided by Mr Blandon endorsed on the photographs of various parts of the footage and his ‘Statement of Response’ seem reasonable.
In a supplementary report dated 10 December 2018, Dr Eaton made the following comments addressed to Mr Chen:
Further to my report dated 7 December 2018 you have requested additional information as to the likely whole permanent impairment Mr Blandon has sustained left in his left upper limb. You have requested that I refer to Tables 9.14 and 9.13.3 of the Comcare Guide 2.1 for guidance and use clinical judgement in arriving at the level of permanent impairment.
Assuming applying 9.14 Upper Extremity Function for the left upper limb pain condition is appropriate, using clinical judgment, 10% whole person impairment would seem reasonable.
Applying Table 9.13.3 and Figure 9-D and Figure 9E using clinical judgement a grading of 2 would be appropriate. ‘Severe pain that prevents some activity’. Assuming the diagnosis of CRPS/CPS according to Figure 9 E whole person impairment would be in the range of 37-48%. This would seem to be excessive due to Mr Blandon’s apparent reasonably good functional capacity when using his left upper limb for day to day activities depicted in the video footage. Whole person impairment due to his pain condition alone would more likely be 10% as suggested when applying Table 9.14. [Bold text and all errors are in the original].
On 18 December 2018 Dr Eaton gave evidence at the hearing. He was asked under cross-examination about the origin of Mr Blandon’s nociceptive pain. He said:
You mentioned maybe some nociceptive changes and you said that that arose from all the interventions?---Yes.
Did you mean this – to do with this - - -?---Yes, from the injury, the interventions, the surgical interventions, the nerve problems he had with, you know, the carpal tunnel, the radial nerve, all those things where sort of, you could say tissue damage pain, for want of a better term.
Those things were a result of the surgeries though?---Yes.
On whether Mr Blandon had exaggerated his pain condition, Dr Eaton said:
… I found him a genuine sort of a person and had horrific injury really and then been through the mill, well and truly. … I really don’t think that, you know, things like pain behaviour and exaggeration were sort of a big deal in this bloke. I just don’t think he was that sort of fellow.
He agreed that he had been asked by Mr Chen to use Tables 9.13 and 9.14 from the Comcare Guide in making his permanent impairment assessment, and observed:
Yes, well - so Doctor, you were told then to use tables 9.14 and 9.13.3, that was the next - - -?---Yes, that I was asked to look at those, and assuming that the basic, I suppose that they're appropriate, or assuming perhaps that they're not appropriate, but to get some guidance and trying to come up with the appropriate figure.
He conceded that, pursuant to the AMA Guide, a loss of grip strength cannot be rated in the presence of painful conditions. However, he commented:
I think this is more about the pain side, so from that point of view, it's not covered in the other part of the guide. We're talking about pain here. We're not talking about structural injury, and using this in a way of trying to gain some sort of an idea of what sort of impairment Mr Blandon would have had from his pain condition.
In relation to the video footage, Dr Eaton made these comments:
So that's not consistent with somebody with a very serious concern they're going to suffer a lot of pain later?---Well, yes. I mean, I think the videos are snapshots, and he will have his good days and bad days, and he will overdo it, and he will do the wrong thing. I mean, really this is between what you should be doing and what you can do. A lot of people with injury and even chronic pain can actually do things, but they often suffer a lot of what's called post‑activity pain, and that could be later that day; it could be the next few days, and I don't know what the evidence you've got from him about how he fared after doing those jobs - - -
He further opined:
It’s about – pain is a, you know, it’s not more injury. It’s a subjective situation and so he could, for example, do something and have extra pain, take some tablets go to bed, maybe the next morning he’s not too bad, you know. It’s very difficult to measure either way. And the trouble with the body is that there’s no objective way of saying either.
In re-examination, Dr Eaton was asked about the use of Table 9.9 (relating to the wrist) of the Comcare Guide in assessing Mr Blandon’s pain:
… that table is not a relevant table to assess the effect of the impairment due to the chronic pain syndrome?---Yes, and that’s what I’ve been trying to say all afternoon.
Prof G David Champion, Conjoint Associate Professor, Consultant Physician in Rheumatology, Musculoskeletal Medicine and Pain Medicine
A report dated 29 January 2017 of Prof Champion was tendered. In it he confirmed his agreement with the opinions of Drs McNicol and Eaton that Mr Blandon had an 18% permanent impairment for his accepted left wrist condition. In relation to his pain condition, he said that there was no assessable whole person permanent impairment as far as I’m able to determine from the Comcare guidelines. However, he added that the apparent final determination of 18% whole person permanent impairment does not do justice to the disability and handicap for work experienced by Mr Blandon.
Prof Champion made these findings in his report:
He was able to make a fist with his left hand but grip was markedly weak, evidently with significant block by pain. Fine independent digital motion in the left hand was very sluggish, i.e. dyskinesia. The range of active motion of finger joints was normal. Thumb joint movements were normal but there was pain from the base of this thumb and focal increase in tenderness at that site. The active range of motion of left elbow and shoulder were full but with some associated “soreness”, particularly at the shoulder…
There was a full range of active cervical spinal motion but some end-range pain. In particular, cervical extension with left rotation provoked pain, he reported, down his left arm diffusely towards his hand. There was multilevel cervical vertebral tenderness notably at the cervicothoracic junction…
I noted the assessment of whole personal permanent impairment of 18% by both Dr McNicol and Dr Eaton…
His left wrist was immobile in 15 degrees of extension. I identified dyskinesia as part of the chronic regional pain disorder and also associated weakness. Although symptomatic, there was no impairment of range of motion of the left elbow or of the shoulder. The symptomatic cervical spine disorder was not associated with restriction of range. Throughout this disturbing history and what must have been perplexing experiences to Mr Blandon, his emotional reactions appear to have been within the expected range of someone going through such experiences and having chronic pain with impaired sleep…
He also noted this report from Mr Blandon:
He then clarified, “I do bits and pieces”. For example, he can mow the lawn, pushing with his right hand.
Prof Champion provided a further report dated 7 December 2018. In relation to his previous assessment of Mr Blandon, and he noted:
I assessed Mr Blandon as having quite high level of disability in his dominant left upper limb, particularly referring to the forearm, wrist and hand, with fusion of the left wrist, and a chronic regional pain disorder involving his left upper limb. There had been a question of complex regional pain syndrome but he did not meet the criteria.
He then expressed some uncertainty as to how permanent impairment of Mr Blandon’s pain condition might be assessed under s 24 of the Act, before observing:
The terminology “chronic pain syndrome (CPS” which apparently, someone had earlier proposed and the term was accepted by Comcare, is unfortunate because it does not have a specific accepted definition. “Post-traumatic chronic regional pain disorder complicating the injury and pathology to the left writst/carpus” is a more appropriate and meaningful descriptive term…The extent of the chronic regional pain disorder was from fingers [sic] to as far proximal as the proximal forearm, perhaps including the elbow region, this being the extent of the abnormal somatosensory test responses. As to the left shoulder and neck/cervical spine, pain in these regions has not been prominent in the history nor in the clinical records and I am unsure to what extent they might be attributable to the subject accident. In any event, they are substantially less problematical than the chronic regional pain disorder affecting mainly his forearm, wrist and hand…
Also in that letter, you stated that I did not express a view as to whether the same “CPS” (chronic regional pain disorder) that has now existed for 8 years is likely to be permanent. That was implied by my assessment of whole person permanent impairment. In short, that condition is permanent so far as it is possible to prognosticate.
In relation to the video footage, he observed that Mr Blandon appeared to be using his left hand, wrist and arm to a reasonably full extent, so that he (Prof Champion) was able to understand representatives of the insurers questioning the severity of his injury and disability. However, he further observed:
·The critical issue with video surveillance is whether the claimant under surveillance performs tasks which he says that he cannot and does not do. I am unaware of Mr Blandon making statements that would cover the activities observed…The point, as Mr Blandon himself states, is that he can do a range of tasks and activities with his left hand and upper limb provided he is prepared to accept sustained exacerbation of pain afterwards.
·Mr Blandon has been advised in the course of his pain management programs and consultations to use his left hand, wrist and arm as much as he reasonably can. Movement, so long as it is not sustained and excessive, is helpful in the management of pain on a short-term basis and on a long-term basis.
Following a further letter from Mr Chen in similar terms to that sent at that time to Dr Eaton, Prof Champion wrote a further report dated 11 December 2018, in which he said:
Further to my report of 7 December 2018, after clarification, I now address whole person impairment WPI) [sic], applying the current Comcare Guide. I understand that the previous 18% WPI has been accepted, and that I am addressing impairment related to the use of Mr Blandon’s whole left upper limb over and above the limitations in range of motion, which disability has resulted from injuries sustained on 14 May 2010 and evaluated in my previous reports. My assessment is based specifically on the findings on examination reported on 29 January 2017 which I have accepted as stable.
Table 9.13.3 was a consideration, but was difficult to apply. Accordingly, I have used Table 9.14, and used clinical judgement, as instructed. For the left upper limb, his dominant upper limb, he meets the criteria for 10% WPI with 2 major criteria and at least 3 minor criteria.
Prof Champion gave evidence to the Tribunal on 19 December 2018. In relation to his diagnosis, he proffered this:
He has a post traumatic chronic regional pain disorder which complicates the injury, multiple surgeries and considerable underlying pathology as revealed at surgery and by MRI, the left wrist (indistinct) so there are two components to it. One is the fixed immobility of his wrist and the second is the chronic regional pain disorder which confers additional and wider spread functional impairment in the upper limb including some neurobiological features of dysfunction such as prominent dyskinesia.
…I assert a grossly deficient fine independent finger function and this is a common accompaniment of chronic regional pain disorders such as complex regional pain syndrome and is related to the neurobiological changes in the nervous system, specifically reduced functioning and reduced volume of the motor function component are related to the sight of pain…
If the chronic regional pain disorder is superimposed on that, which impairs his fine independent finger digital movement, that is the dyskinesia that's part of the neurobiological problem related to the injury and the subsequent surgery, and also with repetitive use, as in work, as I've explained, the pain intensifies, spreads and persists. So, his whole left upper limb is thereby impaired over and above the structural limitations brought about by the injury infusion at the left wrist carpus.
He clarified his view about the relationship between the original wrist injury and the subsequent pain condition:
MR ANFORTH: I'll put it this way. Is the chronic regional pain disorder that you diagnosed, the same diagnosis or condition as a fracture to the wrist?
‑‑‑No. If I may qualify my answer, the chronic pain disorder involves disordered somatosensory functioning in the central nervous system and related psychological and other memory considerations. So it's disordered functioning in the central nervous system and it is the result of the initial injury with fracture and ligamentous injury and more. It is the result of further pain input, stimuli, nociceptive inputs more explicitly, from the … four surgeries. And so it's the consequence of the whole initial injury and all that's happened subsequently.
In cross-examination Prof Champion confirmed that there had been some improvement in the strength of Mr Blandon’s left limb since his last examination of him, but that this improvement was only marginal, in the order of up to about 3% or so.
When asked about the video footage of Mr Blandon pushing a lawnmower, he gave this view:
Well, I imagine it would be difficult but he was not reliant on this hand, he was using it a little, presumably for pushing, and also for guidance. But the whole point is that in doing things, if he accepts the exacerbation of pain, just as recorded in my physical examination and this is characteristic of chronic pain disorders. The cumulative effect of usage patterns lead to increased intensity of pain, wider spread and persistence of pain which can be for hours, or even days, and it's the repetitive sustained application of functions that is the problem with chronic pain disorders, not the ability, or inability, to mow a lawn and accept an increase in pain over a short duration. That's not relevant to his long-term capacity.
In relation to the relationship between Mr Blandon’s four operations on his wrist and the pain condition, Prof Champion said:
… it's [the surgery] contributed significantly to the cumulative nociceptive input into the central nervous system, for surgical trauma and related pain. And so it's contributed in a cumulative sense to the chronic regional pain disorder that complicates the whole issue.
Dr David Gorman, Consultant General Physician, Pain Management Specialist and Medical Oncologist
Dr Gorman authored a report dated 23 November 2018. He diagnosed a fracture of the scaphoid and rupture of the scapholunate ligament of the left wrist. Mr Blandon then developed radiocarpal arthritis necessitating wrist fusion. He also experienced degenerative changes of the carpometacarpal joint requiring a left trapezioectomy and ligament reconstruction. He discounted Mr Blandon presently suffering from complex regional pain syndrome.
He was asked if Mr Blandon suffers from any condition in his left upper limb besides that which arose on 14 May 2010. He said:
He had a reasonable range of pain-free cervical spinal movement…
When asked if he suffered any other condition in his left limb, he responded:
No, he did not suffer from any condition besides which arose on 14 May 2010
Dr Gorman agreed that Mr Blandon suffers from a permanent impairment in his left wrist:
I have relied on my own examination and methodology. I do believe that he does suffer from an impairment due to the wrist injury and the subsequent fusion surgery…
I believe that the impairment is permanent. He has similar findings on multiple examinations since 2015 and the findings are similar during this period…
Using table 9.9.1a on page 122 ankylosis at the position of function gives a 13% whole person impairment. Similarly based on wrist flexion and extension. Using Table 9.9.1b on page 123 ankylosis in a position of function for radial and ulnar deviation leads to a 5% whole person impairment. These two impairments are added giving an 18% whole person impairment…
However, he has had surgery on his radial nerve and has abnormal sensation in the distribution of the radial nerve using Figure 9d on page 135, he has a grade 3 sensory change. He has some diminished light touch and two-point discrimination with slight pain that interferes with some activity. He has a radial nerve injury which, with a grading of 3, using Table 9.13.2a on page 140 would give him a 1% whole person impairment.
Combining 1% for the sensory change with 18% for the wrist fusion gives a whole person impairment of 19%.
He later added:
I believe that any change in sensation in the radial distribution is associated with the surgery…
Further, he offered this critique of Dr Griffith’s use of loss of grip strength in determining permanent impairment:
Firstly, with regard to Dr Griffith, when he assessed Mr Blandon in 2013 there were limitations in shoulder and elbow range of movement. Those limitations are no longer present. This explains part of the discrepancy. As well, he used grip strength on page 10 of his report dated 30 November 2013.
He bases this on the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Edition 5). However, the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Edition 5) on page 508 states that “In a rare case, if the examiner believes the individual’s loss of strength represents an impairing factor that has not been considered adequately by other methods in the guides, the loss of strength may be rated separately”. I believe that the guides do give an adequate indication of the impairment and grip strength need not be used. As well, the guides on page 508 say “Decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities or absence of parts”. In Mr Blandon’s case he clearly has decreased motion due to the fusion and also some pain in association with the numbness. Therefore grip strength cannot be validly used.
Dr Gorman provided a supplementary report of the same date, in which he commented on the video footage. He observed:
These observations on the surveillance certainly indicate that he can use his left upper limb without discomfort and somewhat more than he explained to me. However, as I noted during my examination, he had full range of elbow and shoulder movements which were consistent with the observations on the DVD…
Overall, I do not necessarily believe that the DVD surveillance, showing normal activity in the left upper limb, was significantly inconsistent with my findings. The DVD surveillance did however certainly confirm that he has very good function in the left upper limb despite the wrist fusion.
In testimony before the Tribunal on 19 December 2018, Dr Gorman was asked to comment on Prof Champion’s view of the pain condition. He said:
Do you have any problem with Professor Champion's evidence that what he calls a chronic regional pain disorder is in part caused by damage to the nociception of the central nervous system?‑‑‑I'm not sure it's damage, as in, you know, damage implies something permanent to me. It varies over time, and so my - there's a change in nociception causing pain to be felt more widely, but that change can vary. So the only problem I have with that statement is the word "damage". There's a change in the function but that change is quite reversible and it can vary from time to time.
But it's still manifesting at the moment?‑‑‑Yes, he's still complaining of pain, yes.
…
You would expect that he would continue to suffer this left arm pain for the foreseeable future?‑‑‑Yes. Definitely.
Under cross-examination he explained why the relevant guides do not, in his view, allow for permanent impairment to be assessed on the basis of pain:
How do you arrive at a conclusion that an assessment on that table [Table 9.9] is an adequate assessment of his impairment to his shoulder?‑‑‑Because the guides only allow assessment based on range of motion, among other things, but they don't allow assessment on pain, itself. That's these Comcare guides and all the other guides that set forward - the AMA guides, don't allow assessment of pain, itself. … And so there is - unless the person has what fits the criteria of a complex regional pain syndrome, there's no facility in any of the guides for the assessment of pain.
He explained his view of how an assessment of permanent impairment should be conducted:
Now, the person with a fusion of the wrist almost invariably will have pain shooting up the arm, as Mr Blandon does. They almost invariably will have a lack of dexterity in the fingers. But the genius of the AMA guides is that that is taken into account in the 18 per cent. So thereby taking away any - taking away the inconsistency, variability, subjectiveness of merely an assessment based on pain. So the idea of at the same time using an assessment of upper limb function, such as a - I don't - such as given by Dr Champion in the recent report, of 10 per cent, is really completely against the whole principle of those guides. You know, if - basically you need to make a choice. On some very rare occasions we do need to use an overall assessment of function and come up with a figure like 10 per cent, full stop, 10 per cent. But if there's a more specific way of getting an assessment, we are required to use that. And in this case there is a very specific way of getting an assessment, which is to work out the range of movement in the wrist and come up with a figure of 18 per cent. And, in fact, the guides state you're supposed to take the whole figure. So rather than the 10 per cent based on that part of the guide, I elected, as did most of the other assessors - as did all of the other assessors, I elected to take the 18 per cent, because it was a higher figure, thereby following the guides, higher than the 10 per cent, and, therefore - and also a more specific figure. So the principle is that you use the figure that is specific, and it gives consistency. You don't base your assessment, as was done in the old days, of a percentage loss of function in the limb. And it's because the - all the assessments, if we do an assessment of the shoulder, of course the main limitation in shoulder movement is going to be pain, but if the shoulder is permanent limited, we do an assessment based on that limitation of range of motion because the wisdom of those experienced people who designed the AMA and the Comcare guides, was that if you have pain causing a certain restriction in range of motion, then that functional impairment will led to a certain percentage. If you don't have any restriction in range of motion, sure, there are some conditions that don't - that don't have any restriction in range of motion, and do have pain, but in general those are very unusual and in that case you may use the - a functional measure. But the guides always state that if you use a specific measure, such as range of motion, you must use that. And in this case, you must use only the range of motion because it's specific, he's had a fusion, he's limited in range of motion, and of course every patient with a fusion has radiation of pain up the arm and loss of dexterity in the digits. Of course that's the case, invariably, and that's why he gets a substantial figure like 18 per cent as his whole person impairment based on that, with the additional 1 per cent due to the injury to the radial nerve branches.
The Tribunal asked Dr Gorman to separate and quantify that impairment which arose from the original injury and that which arose from the subsequent operations. He responded that separation of the two impairments would be difficult, in that the surgeries were caused by that fall and along the way the surgeries lead to … not only the fusion but also the same injury to the nerves in the hand. He conceded however that:
…if you wanted to think logically about that you would need to make an estimate of what his wrist would be like or was like prior to the fusion surgery and after the fusion surgery and I guess his range of motion before the fusion surgery was a bit more than it was after the fusion surgery and so arguably the impairment that we estimate was less before the fusion surgery than after the fusion surgery…
LEGISLATION
Section 24(1) of the Act provides:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
In addition, where compensation is payable under s 24, Comcare is liable to pay additional compensation for non-economic loss in accordance with s 27.
Subsection 4(1) defines impairment to mean the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function; and permanent to mean likely to continue indefinitely.
With respect to assessing whether an impairment is permanent, subsection 24(2) provides:
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
Subsections (4), (5) and (6) of s 24 require Comcare to determine the degree of an employee’s permanent impairment under the provisions of the Comcare Guide and to express that degree as a percentage. Where the degree of impairment however is less than 10%, Comcare is not liable to pay compensation under s 24 by virtue of s 24(7). Section 28(4) provides that the Comcare Guide is binding on the Tribunal. The applicable version of the approved Guide in these proceedings is edition 2.1.
Section 4(3) of the Act deals with injury suffered as a result of medical treatment of an injury. It provides:
(3) For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
ISSUES
The issues in these proceedings have at times been difficult to pin down. However, the Tribunal now understands that, of the two applications originally brought before it for merits review, only the second remains in active contention.
The first application (2016/2001) relates to the reviewable decision dated 21 March
2016 concerning Mr Blandon’s accepted condition, fracture of carpal bones (left). That decision determined that Mr Blandon has, pursuant to ss 24 and 27, a whole person impairment of 18% assessing the impairments he suffers as a result of his accepted left wrist injury under Tables 9.9.1a and 9.9.2b of the Comcare Guide. The parties now accept that this decision is correct. It is consistent with virtually all of the medical evidence. The Tribunal affirms the reviewable decision in 2016/2001.
The second application (2017/2388) relates to the reviewable decision dated 3 March 2017 which declined compensation pursuant to ss 24 and 27 for permanent impairment and non-economic loss in respect of the accepted chronic pain syndrome. Mr Blandon contended that this injury has resulted in permanent impairment, separate to any impairment arising from the carpal fracture injury, and that that impairment can be assessed. Conversely, Comcare contended that the chronic pain syndrome, accepted in 2016, was wrongly accepted, and should now be set aside pursuant to the principles enunciated by the Federal Court in Telstra Corporation Ltd v Hannaford[2006] FCAFC 87. It argued that Mr Blandon suffers no pain condition separate to his accepted left wrist injury. The pain he suffers is pain from his left carpal fracture and is therefore a symptom of, and part of, that injury.
Accordingly the issues which it falls to the Tribunal to determine here are:
(a)Does Mr Blandon suffer the injury of chronic pain syndrome?
(b)If so, has it resulted in one or more impairments that are permanent, i.e. likely to continue indefinitely?
(c)If so, what is the assessment of Mr Blandon’s degree of whole person impairment with respect to the impairment(s) he suffers?
A further issue, overlaying those referred to in the previous paragraph, confronted the Tribunal: did the video surveillance evidence demonstrate either that Mr Blandon does not suffer a chronic pain condition or, alternatively, that the extent of his impairments resulting from such a condition do not justify a whole person impairment rating of 10%.
CONTENTIONS
Mr Blandon
Mr Anforth, counsel for Mr Blandon, noted that there were two separate, accepted injuries:
(a)the structural or bony injury to the left wrist, and
(b)the chronic pain syndrome to the left arm as a whole (referred to by Dr Eaton as tissue and nerve damage).
Mr Anforth contended that the diagnostic label used for the pain condition was unimportant, as was the question of whether it was a primary or secondary injury arising from the structural injury to the wrist. It was further contended that each of the injuries gave rise to separate impairments:
(a)the structural injury to a loss of rotation in the left wrist; and
(b)the pain condition to 5 separate impairments, including partial loss of rotation in the left shoulder joint, a partial loss of rotation in the left elbow joint and a partial loss of grip strength in the dominant left hand.[2]
[2] An alternative argument was advanced that the pain syndrome could be viewed as an impairment arising from the structural injury to the wrist, so that there was one injury and six impairments.
As noted above, the parties agreed that a whole person impairment assessment of 18% should be attributed pursuant to s 24 to the structural injury. Mr Anforth contended however that impairments arising from the pain condition must be separately assessed. He contended that an impairment, once identified, must be rateable, and that deficiencies in the relevant guide did not excuse a decision-maker from establishing the appropriate rating of an impairment. No permanent impairment CAN be un-rateable, Mr Anforth submitted.
He conceded the deficiencies in the Comcare and AMA Guides with respect to a chronic pain condition, but argued they could nonetheless assist in the assessment of Mr Blandon’s impairment arising from that condition in the following way:
The degree of impairment is to be assessed by the [Comcare] Guide. The role of the Guide is limited to the quantification of the impairment. It is not the role of the Guide to define what impairment will and will not be compensated.
It is the Guide’s role to provide a method by which all permanent impairment to all parts of the body, bodily systems and bodily functions can be assessed.
The Guide recognizes that it may not provide a method for assessing all impairments and so contain default provisions that lead to the AMA5 and ultimately to clinical judgment.
There is no Table in the Guide for chronic pain conditions in the arms or for loss of grip strength other than for Complex Regional Pain Syndrome (Table 9.13.3) which is not applicable in the present case.
Table 9.14 of the Guide does have some criteria relevant to the assessment of the impairment arising from CPS in the arm but the introduction to Table 9.14 excludes its use unless there ‘is an objectively identified orthopedic or neurological condition’ in the arm. When assessing the impairment from the CPS as opposed to structural injury to the wrist, there is no objectively identified orthopedic or neurological condition and hence why Table 9.14 was used as a guide only in the ultimate exercise of clinical judgment.
If however the Tribunal accepts that CPS is an objectively identified neurological condition then the Tribunal has the assessments on Table 9.14. Prof Champion and Dr Eaton applied themselves to that Table.
When using these default provisions the Guide precludes access to the AMA5 Chapter 18 on chronic pain condition and hence why it becomes necessary to then use the AMA5 default to clinical judgment. [All errors are in the original]
Mr Anforth contended that Dr Gorman’s reliance on Table 9.9 of the Comcare Guide was misplaced, in that the table does not in fact have regard to impairments in other parts of the arm. Counsel for Mr Blandon observed that, using this logic, two claimants with identical loss of wrist rotation would receive the same impairment assessment notwithstanding that one might have chronic pain and the other not. He contended the table could not be used to measure impairments arising from chronic pain.
Mr Anforth also contended that, to the extent that the chronic pain condition was the result of the four operations conducted on the wrist following the industrial accident, that injury was captured by Mr Blandon’s claim in 2016 (and Comcare’s acceptance of that claim) for what was labelled a chronic pain syndrome. This claim followed the four operations, and must be viewed as having encompassed in its ambit whatever pain was a consequence of those operations.
A high degree of precision is not required in the framing of a claim. Mr Anforth submitted:
An Applicant does not have to self-diagnose or otherwise provide medical advice to the Respondent. Section 54 requires only that a claim form in accordance with the approved form be used and that a medical certificate in approved form be provided. The Applicant complied with this. He does not have to dissect the cause of his CPS and make separate applications for each.
Comcare
Comcare submitted that the chronic pain condition accepted in 2016 was wrongly accepted. It said Mr Blandon suffers no pain condition separate to his accepted left wrist injury. His pain is pain from his left carpal fracture and is therefore a symptom of, and part of, that injury. It characterised the evidence of all three doctors who appeared at the hearing as supporting the view that he suffered only one condition, not two. Comcare further contended that the evidence does not support any finding of permanent impairment in respect of claimed loss of grip strength or in respect of any claimed condition in the left upper limb apart from that assessed in the left wrist giving a rating of 18%.
Counsel for Comcare, Ms Wright, submitted that the video surveillance footage showed a divergence between Mr Blandon’s reported incapacity from pain and his actual incapacity. She said that he was guilty of exaggeration and that had tainted all past medical reports which relied on his reporting of pain and incapacity – particularly those of Dr Eaton and Prof Champion. She urged the Tribunal – as a mark of disapproval and to deter future similar conduct – to give those medical reports little or no weight. Ms Wright contended that even the evidence of those doctors before the Tribunal may still be influenced by the earlier exaggeration.
Comcare also relied upon the surveillance footage to establish that there was no separate pain condition or indeed any appreciable impairment in any other part of Mr Blandon’s left upper limb. There is no compelling evidence that any restricted range of motion in the elbow or shoulder (which Comcare denied existed) resulted from left carpal fracture. Comcare also considered that the evidence did not support a finding that any impairment arising from a painful condition was permanent; Mr Blandon had, for example, failed to attend a pain clinic, as recommended by Prof Molloy, leaving open the question of whether this step might have alleviated his condition. There is no evidence that restricted range of motion due to tightness (identified by Dr Eaton) is an impairment that is permanent, i.e. likely to continue indefinitely.
With respect to any injury or impairment arising from the surgery on Mr Blandon’s wrist, Comcare contended that this should be treated as a new and distinct potential injury. The 1% WPI sensory change assessed by Dr Gorman as a result of a radial nerve injury fell into this category. Pursuant to s 4(3), and following Portors v Comcare [2018] FCA 914, it is necessary for Mr Blandon to make a claim for compensation under s 54 in respect of any post-surgical condition suffered as a result of the medical treatment obtained for the wrist condition, before it could be taken to be an injury for the purposes of section 14 of the Act. It was argued that no such claim has been made here.
Ms Wright also took issue with the way in which Drs Champion and Eaton had arrived at a 10% impairment assessment. The 18% as determined by Dr Gorman (and indeed supported by Drs Champion and Eaton) adequately captured the extent of Mr Blandon’s impairment; in any case, the process used by the other doctors was flawed. The exercise of clinical judgement, guided by Tables 9.13.3 and 9.14 in the Comcare Guide, was unjustified given that Table 9.9 met the requirements of s 24. She argued that the loss of rotation criterion referred to in Table 9.9 is a means to measure the degree of impairment in the wrist. She submitted:
…pain is part and parcel of the mechanical injury itself – it is a symptom, the evidence best supports this conclusion rather than a conclusion that pain itself constitutes a distinct injury.
Therefore, to assess pain separately would result in double compensation. Double compensation must be guarded against. She cited Principle 7 of the Guide is authority for that proposition.
CONSIDERATION
As Mr Anforth aptly observed, the parties in these proceedings disagree on just about every point of law raised in the submissions and on many of the facts. That fact has made reaching a decision here an arduous exercise.
Does Mr Blandon suffer the injury of chronic pain syndrome?
It may be observed that the central issue in these proceedings is whether Mr Blandon suffers from a condition other than his original carpal fracture. The parties now accept that an 18% WPI was correctly assessed with respect to that original injury, and so the question of a secondary injury assumes some significance.[3]
[3] Mr Blandon argued that an alternative characterisation of his case is that the various impairments he suffers in his left upper limb (including loss of grip strength, loss of elbow joint rotation and loss of shoulder joint rotation) are attributable to the original injury and not to the secondary injury. Under this contention, the impairments, however arising, must still be assessed and they have not been assessed using the method chosen by Comcare. However, this contention appears to be at odds with his submission that The assessment from the structural injury is agreed at 18% and is not in issue, and I have set it aside.
The task facing the Tribunal is to determine whether there is in fact a secondary injury, or whether Comcare should succeed with its contention that liability for the accepted secondary injury be withdrawn pursuant to the principles in Hannaford. In this respect, Comcare contended that all three experts appearing before the Tribunal agreed that Mr Blandon suffered only one condition, not two. However, I cannot concur with this characterisation of the evidence.
Dr Gorman’s opinion is quite clear; he considers that there is only one condition. In his report of 23 November 2018 he answered the question as to whether Mr Blandon suffers any condition besides that which arose on 14 May 2010:
No, he did not suffer from any condition besides that which arose on 14 May 2010.
In his report of 24 August 2016, Dr Eaton referred to the possibility that Mr Blandon had developed Secondary musculolligamentous strain of the neck, left shoulder and left elbow … due to the adoption of an antalgic posture of the left upper limb due to chronic pain and dysfunction over an extended period. In his subsequent report of 25 September 2016 he again referred to this condition, saying this does not refer to definite additional underlying structural injury but probable secondary effects of the chronic left wrist injury and subsequent chronic regional pain condition. Again, in his report of 7 December 2018 Dr Eaton made reference to severe chronic pain and dysfunction in the left upper limb which he said was likely to be permanent. And in his report of 10 December 2018 he referred to the left upper limb pain condition.
The thrust of Dr Eaton’s evidence must be taken to be that, in his opinion, there was a pain condition separate to the wrist injury. That impression was confirmed by his answer to a question about the use of Table 9.9 in assessing Mr Blandon’s pain:
… that table is not a relevant table to assess the effect of the impairment due to the chronic pain syndrome?---Yes, and that’s what I’ve been trying to say all afternoon.
With this answer he clearly differentiates between the wrist condition addressed by Table 9.9 and the chronic pain syndrome. Although Dr Eaton was asked whether conditions related to the surgery were secondary conditions to the wrist injury, he was not explicitly asked whether any pain condition was the same as the wrist injury.
Prof Champion was asked a question to this effect. In cross-examination this question was asked and answered:
So is there really any need to describe a separate pain condition if the pain is arising from or consequent upon or part, a symptom even of his left wrist injury?‑‑‑I'm not suggesting the chronic pain dysfunction is separate from the injury and that it would pose surgery. No, it's all part of the one diagnostic assessment.
This answer is amenable to the interpretation that he was agreeing that there was only one condition. However, that interpretation is less tenable when Prof Champion’s other evidence is taken into account. When asked at the beginning of his evidence to provide a diagnosis in relation to Mr Blandon’s left arm, he opined:
He has a post traumatic chronic regional pain disorder which complicates the injury, multiple surgeries and considerable underlying pathology as revealed at surgery and by MRI, the left wrist (indistinct) so there are two components to it. One is the fixed immobility of his wrist and the second is the chronic regional pain disorder which confers additional and wider spread functional impairment in the upper limb including some neurobiological features of dysfunction such as prominent dyskinesia.
He went on to concur that the chronic pain disorder is likely to have an impact on fine motor skills with the left fingers… He also agreed that the loss of grip strength is a direct consequence of the wrist injury and of the subsequent surgeries and wrist fusion, as is the pain in the elbow joint.
He was then asked if the assessment of 18% whole person impairment under Table 9.9 of the Comcare Guide, including loss of rotation of the wrist, is an adequate assessment of his true impairment to the left limb. He replied:
If I may clarify, it's not just loss of rotation. It's the cumulative - the total of loss of range of motion of the left wrist and carpus but that is not an adequate assessment and this is one of the problems with these arbitrary assessment requirements; it's not adequate because if you only had those structural and related functional impairments, he would be able to work and he would be able to function generally quite well.
If the chronic regional pain disorder is superimposed on that, which impairs his fine independent finger digital movement, that is the dyskinesia that's part of the neurobiological problem related to the injury and the subsequent surgery, and also with repetitive use, as in work, as I've explained, the pain intensifies, spreads and persists. So, his whole left upper limb is thereby impaired over and above the structural limitations brought about by the injury infusion at the left wrist carpus.
Here the witness is identifying, I believe, not only separate conditions but separate impairments from those conditions. And if this were not sufficiently clear, a further question from Mr Anforth put the matter beyond doubt:
Is the chronic regional pain disorder that you diagnosed, the same diagnosis or condition as a fracture to the wrist?‑‑‑No. If I may qualify my answer, the chronic pain disorder involves disordered (indistinct) functioning in the central nervous system and related psychological and other memory considerations. So it's disordered functioning in the central nervous system and it is the result of the initial injury with fracture and ligament of injury and more. It is the result of further pain input, stimuli, nociceptive inputs more explicitly, from the surgical - the four surgeries. And so it's the consequence of the whole initial injury and all that's happened subsequently.
With this answer Prof Champion traced the causal chain between the initial workplace injury and the subsequent chronic pain disorder, but identified them as separate conditions with separate diagnoses.
It appears, then, that two distinct approaches to Mr Blandon’s left limb emerge from this evidence. One is that of Dr Gorman, who seems to consider that there is only one condition. He summarises that condition as follows:
…a fracture of the scaphoid and rupture of the scapholunate ligament of the left wrist. He then developed radiocarpal arthritis necessitating wrist fusion. As well, he had degenerative changes of the carpometacarpal joint requiring a left trapezioectomy and ligament reconstruction.
By subsequently saying that Mr Blandon did not suffer from any condition besides that which arose on 14 May 2010, Dr Gorman appears to consider the fracture of the carpal bones, the subsequent wrist fusion, the degenerative changes of the carpometacarpal joint and the issues arising out of the surgeries responding to that to constitute a single condition. Diagnostic states which are consequent to, or sequelae of, the trauma to his wrist of May 2010 are, on this view, merely part and parcel of the trauma.
By contrast, Prof Champion and Dr Eaton, while accepting a causal link between the original trauma and those diagnostic states, portray those states as being potentially separate conditions. They both consider chronic pain to be one such separate condition.
Comcare argued that I should give less weight to the evidence of Prof Champion and Dr Eaton on the basis that the former was defensive when being questioned about his understanding of the Comcare Guide and avoided answering questions, while both engaged in advocacy for Mr Blandon. In addition it was said that Dr Eaton was unaware that Mr Blandon was left-hand dominant but taught himself to use his right hand. I did not detect any greater advocacy on their part compared to Dr Gorman for Comcare; in any case, any deficiencies in the approach of Prof Champion or Dr Eaton must be offset against a somewhat more serious concern about the evidence of Dr Gorman, which I set out below.
Having identified that there are, in fact, disparate expert views about the existence of a chronic pain syndrome separate to the carpal fracture, the Tribunal must decide which of those views it prefers. On balance, it considers that Mr Blandon does suffer from a chronic pain syndrome, for two reasons.
First, it is persuaded that the conceptual approach to this question taken by Prof Champion and Dr Eaton is to be preferred over that taken by Dr Gorman. Evidently, Prof Champion and Dr Eaton identify the pain condition here as arising consequently, but not inevitably, from the structural injury. They obviously consider that it has a separate aetiology and gives rise to separate impairments to the original injury. In particular, they identify that a sequela to an original injury – in particular, a frank injury – may have a separate form and course to the original injury, particularly where the sequela is a disease pursuant to s 5B, as a chronic pain syndrome clearly would be. I note at this point that the term sequela refers to a medical condition which represents a medical consequence of a previously accepted injury or disease, but is other than a simple worsening of that condition. A sequela is a different condition, with a different diagnosis, to the original condition. By their nature, sequelae will almost invariably be diseases.
In contrast to Prof Champion and Dr Eaton, Dr Gorman appears to treat an injury and its sequelae as one and the same thing. This approach to the question of injury is illustrated by the following exchange between the Tribunal and Dr Gorman:
Are you saying there that there is no condition which is attributable to the subsequent fusion surgery that does lead to an impairment?‑‑‑I think my - so I (indistinct) they all follow on from one another. Now, I - so, you know, just perhaps - just thinking on my feet. So the fusion was what lead to the profound - the absolute loss of motion in the wrist and so arguably that fusion is important in our impairment assessment currently but I was made aware by the solicitors at that meeting on 11 December of this issue of the nerve injury being something that occurred around the time of surgery and not a (indistinct) of injury, but look, there's no issue with what I believe. I believe he had a fall, he had surgeries which led on from that fall and the surgeries which led on from that fall (indistinct) the surgery was - the surgeries were caused by that fall and along the way the surgeries led to some - not only the fusion but also the same injury to the nerves in the hand.
I understand that but I want you to assume for a moment that the tribunal is able to award compensation at this point in time for impairments arising out of or related to the wrist injury but is not able to award compensation for impairment arising from subsequent fusion surgery. So is it possible in your opinion to quantify the extent to which any impairment relates to one of those factors and not the other?‑‑‑I think the whole injury - the injury led to, you know - the fracture of the scaphoid and rupture of the scascapholunate ligament led to the sequence of events which ‑ ‑ ‑
That's true in a logical sense - and you're quite right, one could not have happened without the other - but the law most likely - there's an argument that we had about this but the law most likely distinguishes between those two things and one is potentially compensable at this time and one is potentially not, so I do need to press that question. Is it possible to quantify the extent of impairment that arises from the fusion surgery separately from the wrist injury?‑‑‑I don't think you can. I don't think you can because, you know, if you wanted to think logically about that you would need to make an estimate of what his wrist would be like or was like prior to the fusion surgery and after the fusion surgery and I guess his range of motion before the fusion surgery was a bit more than it was after the fusion surgery and so arguably the impairment that we estimate was less before the fusion surgery than after the fusion surgery but what I can't understand is why you would pick on the fusion surgery as being uncompensable then you don't pick on the left wrist arthroscopy and the open scascapholunate ligament reconstruction.
That's a legal question there which perhaps we needn't go into at the moment?‑‑‑My view is - I think a pretty standard medical view is that he had his fracture and that led to the wrist arthroscopy, it led to the ligament reconstruction. He still had pain. That led to the need for the arthrodesis and the only additional factor that perhaps wasn't injury-related is that there was some osteoarthritic change in the wrist joint but I presume that that was aggravated by the fall and it eventually went up to the left wrist arthrodesis. I don't think anybody could tease out any of those - it's not as if one of the fusion or the other surgery was some rogue operation or it was done for something unrelated to the fall. (Emphasis added.)
This exchange, and in particular the highlighted sections, seem to suggest that Dr Gorman considered that an injury and its sequela must, as a matter of principle, be considered the same thing. The Tribunal cannot comment on whether this conflation is, as he suggests, a pretty standard medical view (though it was obviously not that of Prof Champion and Dr Eaton), but it can observe that this approach is not consistent with a legal approach to the sequelae of injury.
The legal approach was articulated most clearly by the High Court in Canute v Comcare [2006] HCA 47. There the Court described the architecture of the Act with respect to the relationship between an injury and an impairment as follows (at [10]):
At this juncture, three things may be observed about the concept of "an injury". First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to "disease" or "physical or mental" injuries and, at least to that extent, it assumes that an employee may sustain more than one "injury". The use in s 24(1) of the indefinite article in the expression "an injury" reinforces that conclusion.
At [23] the Court made this observation about the approach used by the Tribunal in that instance:
However, the AAT concluded that:
"Mr Canute has a permanent impairment of his back and subsequently permanent impairment arising out of the same physical injury but producing a psychological sequelae. Hence multiple impairments arising from the same incident, a physical impairment and a psychological impairment."
It may be observed that the AAT here treated the concept of "injury" as co-extensive with the workplace incident which produced the impairments. As indicated earlier in these reasons, the term "injury" is not so defined by the Act.
Their Honours proceeded to make this reflection on the approach of the Federal Court which was the subject of the appeal (at [34]):
Reduced to its essentials, the conclusion of the Full Court majority depended upon the proposition that:
"the policy of [the Act] seems to require such an injury to be treated as an aspect of the impairment created by the initial injury".
It is clear from the context that what was being referred to was what the majority described as a "consequential injury", a notion supported by Comcare in terms of "primary" and "secondary" injuries. Comcare's case depends upon confining the meaning of "injury" to exclude such "consequential injuries". However, there is no foundation in the Act for any such distinction between "an injury" and a consequential or secondary injury. Neither of these qualifiers finds any expression in the Act. The Act speaks exclusively in terms of "an injury".
I do not suggest that Comcare is reprising in its submissions here the error identified by the High Court in Canute, but it does seem to me that the methodological approach taken by Dr Gorman does just that. As Comcare itself noted in its submissions: Causation as understood by Doctors is not identical to legal causation. In these circumstances I give less weight to Dr Gorman’s evidence on the question of whether Mr Blandon suffered a separate injury to the structural injury of 2010, tainted as it appears to be by the use of a legally impermissible premise.
I am faced with cogent evidence by Dr Eaton and Prof Champion that Mr Blandon did suffer a separately identifiable injury, namely a chronic pain syndrome. This evidence is to the effect that he suffered the syndrome, which is a disease, as a sequela of the carpal fracture, a frank injury. I accept that evidence.
The second reason for preferring the opinion of Prof Champion and Dr Eaton relates to the role of the fusion surgeries Mr Blandon undertook following the fracture. All three doctors agree that he suffered some deterioration of his health as a result of those surgeries. All three make reference to the surgery being responsible for some incidence of pain, though their opinions vary as to the extent of that contribution. Dr Gorman appears to assign only slight pain to the surgery, though he does point to its responsibility for any change in sensation in the radial distribution. By contrast, Prof Champion appears to attribute a substantial role to the surgery, saying it had:
…contributed significantly to the cumulative nociceptive input into the central nervous system, for surgical trauma and related pain. And so it's contributed in a cumulative sense to the chronic regional pain disorder that complicates the whole issue.
He goes further in his live evidence:
…the chronic pain disorder … is the result of further pain input, stimuli, nociceptive inputs more explicitly, from the … four surgeries.
Dr Eaton was of a similar mind, as this evidence suggests:
You mentioned maybe some nociceptive changes and you said that that arose from all the interventions?---Yes.
Did you mean this – to do with this - - -?---Yes, from the injury, the interventions, the surgical interventions, the nerve problems he had with, you know, the carpal tunnel, the radial nerve, all those things where sort of, you could say tissue damage pain, for want of a better term.
Those things were a result of the surgeries though?---Yes.
Whereas one may accept that reasonable medical minds might differ on the question of whether a chronic pain syndrome per se is a separate injury to a carpal fracture, the position with respect to an injury arising from medical intervention is much more clear-cut. This is because the architecture of the Act makes it clear that an ailment suffered as a result of medical treatment of an injury shall be taken to be an injury (i.e. a compensable injury under the Act): s 4(3). The causal pathway from employment to compensation is a simplified one compared to other kinds of injury. As Robertson J noted in Portors v Comcare [2018] FCA 914 at [29]:
In my opinion, the purpose of the provision is to make it clear that an injury as a result of medical treatment shall, in the specified circumstances, be itself taken to be an injury without further resort to the definition of that word in s 5A of the Act. The effect of s 4(3) is that consideration of the relationship of the medical treatment itself, as opposed to the original injury, to the employee’s employment is made unnecessary.
As I discern it, there is no dispute that Mr Blandon’s surgeries, if they have contributed to a chronic pain syndrome, constitute a basis on which compensation is potentially payable. The principal ground on which Comcare disputes that s 4(3) operates to recognise a compensable injury is that it asserts that no claim for such an injury had been made, and such an injury is therefore not before the Tribunal.
Where an employee asserts injury as a consequence of medical treatment of an accepted condition, an application under s 54 is necessary. Where there has been no such application the Tribunal has no jurisdiction to consider it: Portors at [30]. Comcare says that that is the case here; I do not agree.
Mr Blandon lodged a claim for workers compensation on 9 July 2013 in which he claimed aggravation of wrist fracture. The claim post-dated the various surgeries on his wrist in 2010 and 2012. On 10 January 2014 Comcare accepted liability for a range of conditions, including injury to median nerve (left), injury to radial nerve (left) and unspecified disorder of muscle, ligament, & fascia (left FCR tendinosis). In her decision Comcare’s delegate accepted that Mr Blandon had sustained a number of injuries that were caused by medical treatment for your previous claim for compensation…. It is quite clear that a claim for an injury under s 4(3) has been made and accepted.
It may be said, of course, that the impairments Mr Blandon claims for in these proceedings relate to the chronic pain syndrome, and not to the various conditions which were accepted by Comcare on 10 January 2014 and which arose out of his surgeries. Indeed, counsel for Mr Blandon put it on just such a basis. Notwithstanding that characterisation, there is no relevance in that distinction. Comcare has accepted liability for various conditions arising out of medical treatment which satisfies s 4(3). As already indicated, there is persuasive medical evidence before the Tribunal that the treatment contributed to the onset of a chronic pain syndrome. There is, therefore, a clear causal linkage between his employment and the pain condition. In this respect, I note that s 4(3) does not require that that medical treatment must have contributed to a significant degree to the onset of the subsequent injury (the test in s 5B); the subsection requires only that one is a result of the other. On this basis it is arguable that even on Dr Gorman’s assessment of the contribution of the surgeries to the subsequent experience of pain, the latter must be considered a separate injury.
For both these reasons I find that Mr Blandon has suffered a compensable chronic pain syndrome.
Has the chronic pain syndrome resulted in one or more impairments that are permanent?
Section 24(1) provides:
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
The existence of a compensable injury is the touchstone for the payment of compensation for an impairment. It is the occurrence of an injury which both “actuates and defines the ambit of Comcare’s duty” to pay compensation: Comcare v Lofts [2013] FCA 1197 at [60].
Having found that there is such an injury, it is necessary to determine whether it results in an impairment or impairments, and whether any impairments are permanent.
The evidence of Prof Champion and Dr Eaton on this question is clear; the chronic pain syndrome has resulted in significant functional impairment to Mr Blandon. In his report of 25 September 2016 Dr Eaton notes:
Presumptively there has been increased musculoligamentous tension/strain of his neck, left shoulder and left elbow due to prolonged antalgic posture of the left upper limb but this does not refer to definite additional underlying structural injury but probable secondary effects of the chronic left wrist injury and subsequent chronic regional pain condition. I have no doubt that Mr Blandon has genuine significant impairment in the nominated areas…
On the question of permanence, Dr Eaton noted in his report of 7 December 2018:
It is now more than eight years since the initial accident occurred and as severe chronic pain and dysfunction in the left upper limb has continued, it is likely to be permanent.
In his evidence to the Tribunal Prof Champion referred to:
…chronic regional pain disorder which confers additional and wider spread functional impairment in the upper limb including some neurobiological features of dysfunction such as prominent dyskinesia…
So, his whole left upper limb is thereby impaired over and above the structural limitations brought about by the injury or fusion at the left wrist carpus.
He also confirmed in his evidence that, despite a marginal improvement in the condition over the preceding two years, he considered the impairment to be a permanent one.
Even Dr Gorman agreed that Mr Blandon suffered a permanent impairment, though he attributed that to the wrist injury and the subsequent fusion surgery, and not to a separate chronic pain syndrome. As already noted, Dr Gorman considered all of the symptoms evident in Mr Blandon’s left limb to be part and parcel of the one condition. However, he was asked to consider the permanence of the pain condition, leading to this testimony:
Do you have any problem with Professor Champion's evidence that what he calls a chronic regional pain disorder is in part caused by damage to the nociception of the central nervous system?‑‑‑I'm not sure it's damage, as in, you know, damage implies something permanent to me. It varies over time, and so my - there's a change in nociception causing pain to be felt more widely, but that change can vary. So the only problem I have with that statement is the word "damage". There's a change in the function but that change is quite reversible and it can vary from time to time.
But it's still manifesting at the moment?‑‑‑Yes, he's still complaining of pain, yes.
…
You would expect that he would continue to suffer this left arm pain for the foreseeable future?‑‑‑Yes. Definitely.
Despite not considering the experience of pain permanent, Dr Gorman does accept that Mr Blandon will continue to suffer it for the foreseeable future.
Comcare submitted that a pain condition cannot be considered permanent if it has not been fully treated. It pointed to Prof Molloy’s recommendation that Mr Blandon attend a pain clinic, something he had not done. Be that as it may, I consider that the multiple surgeries and other treatments undertaken by Mr Blandon to address his pain and dysfunction since 2010 displace this contention.
On the basis of this evidence, the Tribunal is able comfortably to reach the conclusion that Mr Blandon’s accepted pain condition does lead to impairments which are permanent.
What is the assessment of Mr Blandon’s degree of whole person impairment with respect to the impairments he suffers?
As intimated earlier, there was considerable disagreement between the parties as to the way in which impairment under s 24 should be assessed. In particular, there was marked divergence on the appropriate tables in the Comcare and AMA Guides to be used to make this assessment.
Table 9.9 of the Comcare Guide deals with impairments of the wrist, measured specifically as impairments to range of motion of the wrists. Table 9.13.3 assesses complex regional pain syndromes; the table includes quite specific diagnostic criteria for this condition. (It was accepted at the hearing that although Mr Blandon met some of those criteria in the past he did not presently do so.) A chronic pain syndrome is not encompassed within a complex regional pain syndrome. Table 9.14 assesses impairment to upper extremity functions but can only be used to assess impairment from objectively identified orthopaedic or neurological conditions arising in, or affecting, the upper extremities. It was common ground before the Tribunal that a chronic pain syndrome was neither an orthopaedic nor a neurological condition for this purpose.
Chapter 18 of the AMA Guide deals, inter alia, with loss of strength in limbs. It provides that this may be measured and rated separately if a related impairment is not adequately captured elsewhere in the guide. However it also notes that Decreased strength cannot be rated in the presence of decreased motion, painful conditions, deformities or absence of parts.
The threshold contention of Comcare was that there was no need to separately assess Mr Blandon’s pain as it is a minor symptom that causes no additional or separate degree of permanent impairment. To the extent that there is any pain, Comcare submitted that measures such as loss of rotation [assessed under Table 9.9] adequately measure permanent impairment resulting from either pain or a mechanical injury or both. As previously indicated, however, those submissions do not sit well with Comcare’s original acceptance of a separate pain condition nor with the evidence before the Tribunal that this condition does give rise to significant impairment.
Mr Anforth made these written submissions on behalf of Mr Blandon with respect to that assessment:
The degree of impairment is to be assessed by the [Comcare] Guide. The role of the Guide is limited to the quantification of the impairment. It is not the role of the Guide to define what impairment will and will not be compensated.
It is the Guide’s role to provide a method by which all permanent impairment to all parts of the body, bodily systems and bodily functions can be assessed.
The Guide recognizes that it may not provide a method for assessing all impairments and so contain default provisions that lead to the AMA5 and ultimately to clinical judgment.
The submission then discusses the qualifications to Tables 9.13.3 and 9.14 of the Comcare Guide which prevent their use in assessing a chronic pain syndrome, though they may be used for guidance in the ultimate resort to clinical judgement, the submission argues. For similar reasons Chapter 18 of the AMA Guide cannot be directly applied, but may offer useful guidance. The submission continues:
…it is the role of the Guide to provide a medical meaningful assessment of an impairment. It is not sufficient that the Guide contains a Table that relates to some part of the body if that Table does not relevantly and meaningfully assess the impairment to the particular part of the body, bodily system or bodily function. Hence… an assessment under Table 9.9 for loss of wrist rotation is not a relevant or meaningful assessment of the partial loss of use of the shoulder, elbow, hand, grip or arm as a whole.
None of the doctors thought that Table 9.9 provided an adequate assessment of the total impairment. It provided only an adequate assessment of that which it purported to assess, namely the loss of rotation in the wrist joint…
To say that the Chronic Pain Syndrome is not ratable on the Guide [as a] statement of law is incorrect for the reasons given above. No permanent impairment CAN be un-ratable. It is also not the same thing as saying there was no impairment.
I accept the thrust of these submissions on behalf of Mr Blandon. Having determined that there is an injury which gives rise to impairments, the essential challenge facing a decision-maker is to determine how they should be measured, not whether individual tables are fit for purpose. It is quite logical that the scheme should default to clinical judgement where the tables are inadequate to make that determination.
At the heart of the argument from Comcare disputing this approach is that if the applicable table – at first instance, in the Comcare Guide – does not fully capture the impairment, then the impairment cannot be rated to the extent that it falls outside the table. That submission cannot be supported. Where, pursuant to s 24, a permanent impairment arises from an injury, an employee is entitled to compensation for that impairment. The tables in whichever guide is relevant are merely tools to achieve that purpose, not arbiters of whether the purpose is achievable. The imperative of identifying an appropriate method by which to assess any permanent impairment is underscored by the following discussion by Downes J (with whom Tracey and Flick JJ agreed) in Comcare v Broadhurst [2011] FCAFC 39 at [8], [23]-[24]:
Clause 12 in Part I of the Comcare Guide provides that where impairment cannot be assessed under the Comcare Guide “the assessment is to be made under the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment current at the time of assessment”…
The precise provision of cl. 12 is that “[a]n assessment is not to be made using the [AMA guide] for... chronic pain conditions...’. Subject to examining the provisions of AMA5, that provision may only preclude the use of that part of the AMA guide which addresses chronic pain as a condition. AMA5 contains a chapter relating to Pain, including chronic pain. It is to be noted that the Comcare Guide does not contain any provision for the assessment of chronic pain as such. The Comcare Guide deals separately with different body systems such as the Cardiovascular System and the Musculoskeletal System and guides the assessment of impairment by reference to these systems rather than by reference to symptoms. There are provisions dealing with pain, such as Complex Regional Pain Syndromes, but there is no separate section dealing only with pain. AMA5, on the other hand, has a chapter entitled Pain. It contains protocols, figures and tables for the assessment of pain. However, the chapter emphasises that it should not be used “to rate pain-related impairment for any condition that can be adequately rated on the basis of the body and organ impairment rating systems given in other chapters of the Guides” (page 571). Other parts of the Chapter repeat this restriction.
In these circumstances I do not doubt that the prohibition of the use of the AMA guide in cases of chronic pain conditions, consistently with the absence of such a means of assessment in the AMA Guide and with the restriction on the use of such a means in the AMA guide, simply operates to preclude the use of the Chapter of the AMA guide entitled Pain. Such a construction is wholly consistent with the words of cl. 12 and with an intention, which can be imputed to it, that it should not leave chronic pain conditions without any identified means of assessment. (Emphasis added.)
See also Comcare v Wuth[2018] FCAFC 13.
So the question stands: what rating under s 24 should Mr Blandon’s impairments receive? Both Prof Champion and Dr Eaton assessed a whole person impairment arising from the pain condition of 10%, using Tables 9.13.3 and 9.14 to guide their clinical judgement. As Comcare pointed out, both doctors also agreed with Dr Gorman that the carpal fracture attracted an 18% rating; however, that assessment must be understood in the context that they both felt at that juncture that they were constrained to assess Mr Blandon’s impairments exclusively in terms of the Comcare Guide. As Prof Champion pointed out in his report of 29 January 2017, with respect to other sites of pain and disability in his elbow, arm, neck, shoulder and fingers there was no assessable whole person permanent impairment so far as I am able to determine from the Comcare guidelines. He added:
This is an unfortunate and, in my view, unfair limitation of assessment, a shortcoming of the Comcare guides.
When a different set of parameters was applied – namely, that a separate chronic pain condition should be assessed using clinical judgement – both doctors readily assessed a whole person impairment of 10%.
Dr Gorman gave the structural injury an 18% rating under Table 9.9, which Comcare argued included the proper rating of any pain arising from that injury. It based this submission on Dr Gorman’s evidence that pain is frequently inculpated in causing a loss of rotation, which is what Table 9.9 assesses. However, in this case it is the fusion resulting from the wrist surgeries which has caused the loss of rotation, not pain. In those circumstances it is hard to see how Table 9.9 captures the pain arising from the original injury. In any case, a better reading of Dr Gorman’s evidence is that he was saying that pain cannot be rated, not that it is captured incidentally under other tables, as this evidence at the hearing suggests:
That's these Comcare guides and all the other guides that set forward - the AMA guides, don't allow assessment of pain, itself. … And so there is - unless the person has what fits the criteria of a complex regional pain syndrome, there's no facility in any of the guides for the assessment of pain.
In any case, as already indicated the Tribunal does not regard that approach as adequate, given that in this instance there is a separate injury resulting in separate impairments. Thus separately assessing the pain condition does not, contrary to Comcare’s submissions, lead to double compensation.
Dr Gorman was unable, or unwilling, to provide a rating separate to the 18% rating for the carpal fracture. More specifically, he was unable to assess a rating in relation to impairments arising from the surgeries as a separately compensable condition pursuant to s 4(3).
Comcare contended that the evidence of Prof Champion and Dr Eaton should be given less weight because they lacked specialised knowledge of either the Comcare or AMA Guides. However, the doctors were called for their clinical expertise, not for their knowledge of the respective guides. In circumstances where qualified lawyers here were in hot dispute as to which parts of the guides were to be applied, and how, it hardly seems fair to expect medical experts to be any better informed.
Further, Comcare submitted that Prof Champion and Dr Eaton were in error to refer to Tables 9.13.3 and 9.14 in arriving at their 10% rating. They did so, of course, at the invitation of Mr Blandon’s solicitor. Unfortunately, Comcare has not suggested to the Tribunal what guidance, if any, could be provided to a clinician tasked with exercising clinical judgement in the circumstances where no table appears to appropriately capture Mr Blandon’s impairments arising from a chronic pain condition. Its position was premised on there being no other injury than the carpal fracture, and there being no table relevant to measure his impairments other than Table 9.9.
With respect, it appears that Comcare has placed all its eggs in the one proverbial basket. It should be remembered that the hearing was specifically reopened for the purpose of hearing from the doctors viva voce and clarifying the import of their evidence on the question of impairment. It would have been a simple matter to have put to them – perhaps with the exception of Dr Gorman, who seemed unable to grasp the task conceptually – what clinical judgement they might have arrived at using other tables, or indeed using no particular table at all. That that opportunity was passed by should not be a reason for Mr Blandon to fail to have his impairments assessed, as is his right under the Act.
I do not discern anything inherently unreasonable about the application of Tables 9.13.3 and 9.14 for the purpose of assessing impairments in relation to pain. Of course, what is reasonable to consider in informing clinical judgement is a matter for clinicians themselves, not for the Tribunal: Comcare v Wuth[2018] FCAFC 13 at [95]. To an unqualified observer, however, they might seem reasonably fit for purpose. Neither Prof Champion nor Dr Eaton appeared to regard the invitation that they use the tables to represent some kind of abridgement of their clinical discretion. In the absence of countervailing evidence in this specific context, I accept, firstly, that their use of those tables was not inappropriate and, secondly, that the 10% whole person impairment assessment arising from the clinical judgement so informed is reasonable.
Does the video surveillance evidence have a bearing on these findings?
Comcare submitted to the Tribunal – correctly – that any conclusions regarding the existence of a chronic pain condition or of any impairments arising therefrom must be heavily dependent on Mr Blandon’s own credibility. It submitted that pain is subjective, and that in such cases medical opinion necessarily relies to some degree on a person’s own reporting of the experience of pain. It contended that the video surveillance material and Mr Blandon’s demonstrated dishonest evidence should lead the Tribunal to find that in fact he suffers from no impairment arising from the chronic pain syndrome – and, indeed, he does not suffer from a chronic pain syndrome at all.
The video surveillance material was not available at the first hearing, but was produced at the second hearing following the adjournment. It was thus possible to compare what Mr Blandon had told the Tribunal on the first occasion with what appeared on the screen. It was also possible to gauge the extent to which his evidence of disability and incapacity had changed between the first and second hearing days. On balance, the Tribunal is not persuaded that the video evidence displaces or invalidates the medical evidence to the effect that Mr Blandon suffers impairments arising from a chronic pain condition.
Mr Blandon is shown in the video footage using his left hand and arm in a variety of ways. He carries bags and lifts grass clippings in a garden pan with his left hand. He operates a lawnmower, a whipper snipper and a broom with both hands, activities that stretch more or less continuously over a 45 minute period on one day. He cradles purchases in the crook of his left arm while reaching for items with his right hand in a shop. The surveillance extended over a 10 day period but on some of those days nothing specifically pertaining to the use of his left limb can be seen in the footage; for example, Mr Blandon is seen driving a car or walking around shops.
Though he does appear not to be actively eschewing the use of his left limb in much of the footage, it can nonetheless be observed that he does generally favour the use of his right hand/arm over the left. He is seen carrying bags in both hands from time to time; where he carries something only in his left hand, it is generally only for a matter of a few seconds or where the object concerned appears to be very light e.g. his wallet and car keys.
It appears to the Tribunal that in the majority of instances where Mr Blandon is using his left hand/arm, it is because it is inconvenient or impractical not to use his right hand/arm. For example, a whipper snipper must be operated by both hands, as must a broom. He rolls up a garden hose with both hands. Where he is seen carrying a bag in his left hand, it is generally just as he is approaching his car, where presumably he requires some dexterity in his right hand to push the button on his key ring to unlock it. For most of the time he is sweeping, his right hand is the “working” hand, i.e. the hand on the lower part of the broom. I had him bring the whipper snipper to the hearing room, where I was able to feel its balance and weight. I accept his evidence that greater dexterity is required at the rear of the machine, from which it is “steered”, then from the middle which operates as the pivot point. In the footage Mr Blandon mostly operated the machine with his right hand at its rear.
Occasionally he is seen carrying something only with his left hand, but these occasions are so brief that it is impossible to say whether they represent a typical or atypical distribution of weight over a period of several minutes, say, between buying something in a shop and reaching his car with it. He is seen carrying a plastic bag with his left hand at the hospital with what he said were pyjamas inside, but for most of the footage he is in fact carrying the bag in his right hand. None of the footage is clear enough to indicate whether, when he carries something in his left hand, he uses three fingers, as he originally told the Tribunal.
Ms Wright, for Comcare, pointed out that at one point he held the whipper snipper in his left hand while pulling on the starter cord with his right. As she pointed out, some force is required on the part of the left hand to hold the machine steady while the right hand pulls the cord. However, this manoeuvre lasted just four or five seconds. The Tribunal observed that on other occasions Mr Blandon rested the whipper snipper on the ground or on his mailbox to avoid this problem.
On the first day of hearing Mr Blandon told the Tribunal that he could use his lawnmower, but would push with his right hand and rest his left hand on the handlebar. In the video footage, however, for most of the time he grips the handlebar with both hands. Ms Wright suggested that this demonstrated his earlier evidence was untruthful. However, I note that on the first day he also described that he pushed a shopping trolley with both hands on the handlebar, the right exerting force with the left working to guide the trolley. It is possible that this mechanism could describe how he might operate a lawnmower. I also observed that he would sometimes drop his left arm to his side and push exclusively with the right hand, but never the other way around. I would hesitate to describe this overall picture of his evidence as demonstrating untruthfulness.
I note that none of these activities involve fine motor skills, the skills which he told the Tribunal he was unable to execute with his left hand. On the only occasion in the footage where fine motor skills are required – where he unscrews caps on his car tyres and applies air to them – he uses only his right hand.
Prof Champion commented aptly in his report of 7 December 2018:
The critical issue with video surveillance is whether the claimant under surveillance performs tasks which he says that he cannot and does not do.
Against this benchmark, it is difficult to identify any particular activity in the video footage which is patently at odds with what Mr Blandon told the Tribunal in his oral evidence. Prof Champion opined that Mr Blandon can do a range of tasks and activities with his left hand and upper limb provided he is prepared to accept sustained exacerbation of pain afterwards. Comcare submitted that over the 10 days of footage there was no evidence that Mr Blandon was afflicted with pain, but that submission cannot be accepted when on some days there was nothing in the footage but a fleeting image of Mr Blandon travelling from one place to another.
Significantly, none of the three doctors giving live evidence considered that the surveillance material greatly altered their opinion of Mr Blandon’s level of disability. Dr Eaton noted Mr Blandon’s apparent reasonably good functional capacity…depicted in the video footage, but nonetheless considered that he was still entitled to a WPI rating of 10%. When Dr Gorman in his report of 23 November 2018 was asked about whether Mr Blandon was voluntarily exaggerating his symptoms, he noted merely that the footage was not significantly inconsistent with my [earlier] findings.
Even assuming, as one could here, that there has been a patina of exaggeration by Mr Blandon on the severity of his symptoms, this does not establish either that the condition is a fiction or that the impairments are imaginative embellishments. Mr Blandon struck me as a witness of truth, notwithstanding my perception that it is possible he has overstated the effects of his condition.
CONCLUSION
I am satisfied, on the balance of probabilities, that Mr Blandon’s accepted condition of chronic pain syndrome persists, and produces impairments which entitle him to compensation pursuant to ss 24 and 27.
Accordingly, the Tribunal:
(c)affirms the reviewable decision of 21 March 2016 assessing person impairment for the accepted carpal fracture under s 24 of the Act at 18%;
(d)sets aside the reviewable decision of 3 March 2017 and instead decides that Comcare is liable to pay compensation to Mr Blandon for permanent impairment and non-economic loss under ss 24 and 27 in respect of the accepted chronic pain syndrome, with the degree of permanent impairment pursuant to s 24(5) being 10%; and
(e)directs that Comcare pay Mr Blandon’s costs, as agreed or taxed, pursuant to s 67(8) of the Act.
I certify that the preceding 166 (one hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO.
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Associate
Dated: 5 September 2019
Date(s) of hearing: 27 August 2018; 18-19 December 2018
Date final submissions received: 1 February 2019 Counsel for the Applicant: A Anforth Solicitors for the Applicant: Capital Lawyers Counsel for the Respondent: S Wright Solicitors for the Respondent: Australian Government Solicitor
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