Cizmar v D&P Specialists Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cizmar v D&P SPECIALISTS PTY LTD [2023] NSWPIC 483
APPLICANT:	Stevan Cizmar
RESPONDENT:	D and P Specialists Pty Ltd
MEMBER:	Lea Drake
DATE OF DECISION:	19 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for whole person impairment; dispute as to entitlement for consequential complex regional pain syndrome (CRPS) arising out of medical treatment, an injection, for an injury suffered on 19 April 2019; Held – award in favour of the applicant in respect of a consequential condition of CRPS arising from the medical treatment, an injection, undergone by the applicant for treatment of the injury; lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. There will be an award in favour of the applicant in respect of a consequential condition of Complex Regional Pain Syndrome (CRPS) arising from the medical treatment, an injection, undergone by the applicant for treatment of an injury he suffered in the employ of the respondent on 2 April 2019. 2. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: (a) Date of injury: 2 April 2019; (b) Body system: cervical spine, thoracic spine, lumbar spine and the condition of CRPS; (c) Method of assessment: whole-body impairment, and (d) Documents to be referred: Application to Resolve a Dispute and attached documents, Reply and attached documents and Applications to Admit Late Documents and attachments.

STATEMENT OF REASONS

BACKGROUND

Stevan Cizmar, (the applicant), was a shop fitter employed by D and P Specialists Pty Ltd, (the respondent), when he was injured loading a truck on 2 April 2019. He has undergone extensive medical interventions. He now seeks referral to a Medical Assessor for an assessment of whole body impairment. Whilst there are a number of agreed areas of injury for referral to a Medical Assessor, there is an outstanding dispute as to whether the applicant has suffered CRPS and, if so, whether it occurred as a consequence of the medical treatment for this injury.

ISSUE FOR DETERMINATION

The issue in dispute is whether the applicant is suffering from CRPS and whether it arose following a CT guided cervical perineural injection (the injection). The applicant relies on the opinion of his treating specialist Dr Wallace, Associate Professor Boesel and
Dr Jane Standen. The respondent rejects the applicant’s claim and relies on the opinion of
Dr Gorman, who dismisses the diagnosis of CRPS and propounds an alternate diagnosis of a somatoform disorder, a functional neurological disorder, and of Dr Bisht who propounds an alternate diagnosis of a somatic symptom disorder.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration hearing the respondent raised an objection to the report of
Dr Standen in respect of the application of regulation 44 of the Workers Compensation Regulation 2016. That objection was not repeated in the written submissions of the respondent dated 27 July 2023. The Personal Injury Commission (Commission) entered into correspondence with the parties post conciliation/arbitration to clarify the situation. After some confusing correspondence from the applicant’s counsel referring to conversations with the respondent’s counsel, and initial correspondence from the respondent’s solicitor, the situation was clarified by the solicitor for the respondent who confirmed in further correspondence on 14 September 2023 that the respondent withdrew its objection to the admission of the report of Dr Standen. For the avoidance of doubt the Commission’s conclusion would have remain the same without the admission of Dr Standen’s report.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Applications to Admit Late Documents and attachments;
(d)    respondent’s submissions 27 July 2023, and
(e)    applicant’s submissions in reply dated 31 July 2023.
There was no oral evidence.

CONSIDERATION

The applicant was injured on 2 April 2019. He alleges that he suffered an injury to cervical, thoracic and lumbar spine and a consequential injury of CRPS.
The applicant has been subject to a number of medical treatments, interventions and surgeries but, most relevantly to this application, he underwent the injection on
[1] ARD Page 1.
21 August 2019. His evidence regarding his medical history and symptomatology before and after the injection is comprehensively dealt with in his statement of 5 December 2022[1].
A summary of this history is below:
(a)    Following his injury, the applicant immediately consulted with his general practitioner Dr Sadiq and then saw him generally twice per week between
April and May 2019 for updates and a review of medication.
(b)    He consulted physiotherapists Mr Rickards and Mr Maslalar, who recommended a bone scan and then someone called Naz at Campbelltown with weekly sessions of manual therapy, stretching and strengthening exercises. His evidence is that these sessions were excruciatingly painful. He ceased these treatments after approximately six weeks.
(c)    In May 2019 he returned to Dr Sadiq and was referred for MRI scans of his thoracic and cervical spine.
(d)    In May 2019 he was referred to a specialist pain physician Dr Laurent Wallace and a spinal surgeon Associate Professor Mark Sheridan. Dr Sheridan referred him for a bone scan. After the bone scan Dr Sheridan recommended conservative treatment by way of pain management, physiotherapy and exercise rehabilitation.
(e)    In July 2019 the applicant consulted Dr Wallace. By this time he was experiencing pain wrapping around his neck, into his right shoulder and his arm. Dr Wallace adjusted his medications and suggested exercise physiology and a pain psychologist. He also suggested he undergo radiology guided C5/6/7 transforaminal epidural steroid injections.
(f)    On 21 August 2019 the applicant underwent the injection.
Extracts from the applicant’s evidence regarding his physical reaction to the injection are set out below;
“29. On or about 21 August 2019, I underwent a CT guided cervical perineural
injection. After this injection both of my hands were irritated, itchy and blotchy
with changes in colour. I did not experience any relief in my symptoms. I was
still feeling dizziness, fatigued, nauseous and was having episodes of heart
palpitations. Overall, I was disappointed with this treatment.
30. On or about 28 August 2019 and 25 September 2019, I returned to Dr Wallace
with no improvement in my pain. Dr Wallace thought it was possible I was
suffering from Complex Regional Pain Syndrome (‘CRPS’), possibly from my
previous perineural injection, but he noted this would be an unusual
consequence. It was recommended that I be reviewed by Dr Sheridan and to
commence exercise physiology with Active Solutions Health.
31. Between 27 September 2019 and 16 December 2019, I continued seeing Dr
Sadiq regularly. My condition throughout this period was deteriorating,
occasionally my neck locked up, and I experienced constant pins and needles
in my right hand and neck, as well as skin sensitivity from my elbows to my
knuckles of both hands. I was provided with referrals for updated MRI scans for
my specialist appointments.
…….
48. On or about 14 May 2020, I returned to Dr Sheridan after my recent scan. He
opined that I was still showing symptoms of CRPS, specifically in my left hand. I
complained of numbness in both my legs and some episodes of urinary
incompetence due to pain in my back. I was provided referrals for MRI scans, a
further bone scan and a referral to my pain specialist for CRPS treatment.
………
53. On or about 6 July 2020, I consulted Dr Davies. I explained the severity of my
CRPS in my left hand as I felt an altered sensation and like my left hand was
constantly frozen making it difficult to grip things…..
54. On or about 28 October 2020, I underwent an ultrasound of my left hand.”
The applicant provided a summary of his ongoing symptoms.[2] In addition to other symptoms they are numbness and pins and needles in left and right hands, including fingers; loss of dexterity; loss of fine motor skills; loss of grip strength in left and right hands; sensation of coldness in left and right hands; sensation of heat in left and right hands; sweating during cold temperatures in left and right hands; swelling in left and right hands; purple and red discoloration on left and right hands; blotchiness on left and right hands.
[2] ARD page 11.
He also stated:
“70. As a result of my work injuries, there are also many physical differences in both of my hands caused by my CRPS. My hands are extremely discoloured and
depending on the temperature range from a red colour to a blue or purple
shade. Hair also no longer grows on my knuckles or fingers and my nails no
longer grow on both hands.
71. I feel uncomfortable when people ask me about the obvious discolouration in
my hands. I am thankful that the scar on my neck is unable to be seen when I
am wearing a shirt, however there is no practical way for me to be able to cover
my hands whenever I leave the house. I am extremely self-conscious because I
no longer look normal in the same ways that I used to. The discolouration in my
hands is a constant physical reminder of my injuries and how no treatment up
until this point has provided me with any significant pain relief which is a very
hard reality to accept and wears on my mental health. I am embarrassed of
what has happened to me and my current physical condition, so I avoid leaving
my home.
72. As a result of my work injuries my hands are easily irritated by different
temperatures of water. They constantly feel like they are burning or on fire,
which is aggravated by hot water. As a result, sometimes I avoid showering for
four to five days to put off experiencing this uncomfortable feeling and
heightened sensations.”

MEDICAL EVIDENCE

Dr Laurent Wallace

Dr Laurent Wallace, from the South-West Pain Clinic, the applicant’s treating pain specialist, stated that he referred the applicant for the injection because it was possible that it might give him longer term pain reduction. On 28 August 201928August 2019 and in correspondence with Dr Sadiq he described his consultation with the applicant following the injection. He said:
“Stevan came to see me today, quite distressed. He had a recent procedure performed by the radiologist, that I requested, which started off with the right CS perineural injection. He tells me that around 3 hrs later he had hot flushes, his neck and face became quite red, like he had a sunburn, he had dots all over both arms and since that time, his hands, in partlcular his right hand, has been purplish and quite cold. He also describes worsening of his pain at the base of his neck and the right nape.”[3]
[3] ARD page 94 and 25 September 2019.
On 25 September 2019 in correspondence with Dr Sadiq he described his findings on examination of the applicant’s hands. He said:
“On examination today both hands, right more than left, are blotchy and cold. Stevan describes decreased strength, although he still has quite good strength, he tells me that it occasionally becomes swollen. There does not appear to be any dysaesthesia or allodynia or hyperalgesia on examination today. If anything I would say it is slightly better than when I saw him around four weeks ago, but Stevan feels that it is effectively unchanged.”
………………….
Impression
Possible CRPS, right greater than left hand, but a right C6 perineural injection by a radiologist is a very unusual trigger for this in my mind.”

Dr Mark Sheridan

On 15 May 2020 Dr Sheridan, the applicant’s treating neurosurgeon, advised that he considered the applicant still had symptoms of the CRPS;[4]
“The MRI scan shows the fusion healing well and no evidence of recurrent nerve
compression or nerve compression at other levels. He still has symptoms of CRPS
particularly in his left hand. He needs to go back and see his pain specialist for
this.”
[4] ARD page 156.

Associate Professor Boessel

Associate Professor Boessel provided a report dated all 13 December 2021.[5] He took a detailed history of injury.[6] In relation to the injection, he took the following history:
“…There all was pain-focused physical therapy. He was referred for cervical spine injection under CT guidance. He describes his outcome from this as having 'coming off second best'. He developed redness over the entire upper body and some difficulty breathing. While he did present to the GP, nothing further was done and he improved over around 48 hours with respect to the above symptoms. Over coming days, he experienced the onset of coldness and blueness in the upper limbs, left greater than right, with intermittent sweatiness in the left and right arms, oedema and shininess of the skin. He developed a tremor and weakness in both hands. Subsequently, he noted abnormal fingernail growth and more recently over the last year, loss of hair on the hands and fingers. He describes ongoing allodynia in the left greater than the right to the wrist. I understand that he subsequently had been diagnosed with complex regional pain syndrome both by Dr Wallace, and following referral to Dr Jane Standen for an independent review. Dr Wallace subsequently kept the medication capped and referred him back to Mark Sheridan. Prof Sheridan performed an anterior cervical decompression and fusion at C5- C6 and C6-C7 with damage noted on the left at the C3-C4 level. This was perforomed [sic, performed] on the 10th of January 2020. Subsequent to this surgery immediately, he noted change in voice with hoarseness, dysaesthesia in the soft palate and increased pain in the neck.
There was numbness in the left arm which also started soon after the surgery. He is quite disappointed with the outcome and has subsequently declined further surgical treatment.
He has had a course of physical therapy and exercise physiology through Dr Wallace over the last several years with associated mirror box and CAPS-specific therapies. This was discontinued in September. Overall, Mr Cizmar feels that his condition is only mildly improved but has plateaued…..”
[5] ARD page 29.
[6] ARD page 30.
In his consultation with the applicant he noted the following current symptoms:
“CRPS features. As outlined above, he has suffered from these from the time of the
cervical spine injection. These are more prominent on the left than the right but
encompass hypersensitivity to light touch and stimulation of the wrist radiating to the
fingers, duskiness of the skin with cold temperature change and associated
clamminess of the fingers and swelling. There is some dystrophic growth of the nails
reported with loss of hair on the hands. He has also subsequently developed a
all Dupuytren's contracture of the left ring finger with associated stiffness.”
On physical examination Associate Professor Boessel found the following:
“CRPS features:
These were present in both upper limbs but to a much more significant degree on the left than on the right:
·        Light touch and punctate stimulation produced significant allodynia in both wrists,
radiating to the fingers.
·        There was duskiness and coldness of the hand and wrist bilaterally, much more
·        significant on the left than on the right.
·        There was oedema of the fingers on both hands with clamminess to a significant extent
on the right hand.
·        He had mild dystrophic nail growth bilaterally with no hair on the hands. I note the
Dupuytren's contracture in the left ring finger with associated stiffness[7].”
[7] ARD page 32.
Under the heading ‘Injuries and Disabilities’ he listed the applicant as having “CRPS type I bilateral upper limbs, left to a significantly greater degree than right, consequent to a survival spine injection.”[8] He concluded that the applicant suffered CRPS as a consequence of medical treatment, being a spinal injection, for his primary injury.
[8] ARD page 33.

Dr Jane Standen

Dr Jane Standen, Consultant Pain Medicine Physician and Anaesthetist, provided a report dated 12 November 2019[9] at the request of icare dated 18 October 2019, expressed to be for the purpose of helping with decisions about his treatment. She reviewed the available records and file data, and interviewed and examined the applicant. Dr Standen provided an impressively detailed history and overview of the applicant’s condition across the range of his injuries and disabilities including CRPS. She found neuropathic pain involving both hands. As part of his history she referred to a neurosurgical review organised with
Associate Professor Mark Sheridan who indicated surgery was warranted and referred
[9] ARD page 455.
Mr Cizmar to a pain specialist Dr Laurent Wallace. At that time Mr Cizmar described both posterior thoracic and cervical pain and right upper limb radicular pain. Radiological guided cervical transforaminal epidural steroid injections were arranged.
Dr Standen considered the applicant’s right-sided C5 perineural injection undertaken on
21 August 2019. He told her that for the first two days following the injection he experienced less upper limb pain and how, following this period, he noticed mottling appearance of the face, nape of the neck and both hands. Associated symptoms were nausea, rapid breathing and sweatiness. Mr Cizmar indicated that colour changes in the face and trunk settled quite quickly, however colour changes in the hands have persisted.
Dr Standen reviewed the history of the applicant’s treatment with Dr Wallace. Colour changes of the hands were noted by Dr Wallace 28 August 2019 and 25 September 2019 right side greater left. Dr Wallace had raised the possibility of CRPS. She noted that the applicant had proceeded to a cervical fusion on 10 January 2020.
Dr Standen noted that the applicant had no clear management plan for the neuropathic pain of his hands.
“He stated on the left side there is a hiatus from pain in
the forearm until pain restarts in the left hand. On the right side pain is a continuum over the lateral aspect of the right arm into the right hand.
….
Associated features include colour changes in the hands. There is significant reduction in temperature in both hands and dysaesthesia with placing his hands in warm water. Mr Cizmar described episodic sweating of the palms as well as soles of the feet. He denied any nail growth changes nor any hair growth changes over the forearms or hands. Pain significantly inhibits function of both hands.”
Dr Standen noted on physical examination;
“Most notable were significant colour change involving both hands equally. They appeared to be mottled in appearance. Both hands were exceedingly cool to touch. …Both hands were mildly swollen in appearance. Mr Cizmar was still wearing his wedding ring. There was no sweating of the palms. There were no nail growth changes and there was no hair change growth over the forearms or dorsum of the hands in consultation.”
Dr Standen findings are set out below:
“At present there appears to be a number of biomedical contributors to his current pain presentation. Those are as follows:
1. Mild thoracic disc herniation.
2. Multileval cervical foraminal stenosis predominantly right-sided.
3. Complex regional pain syndrome probably type 1 of the peripheral upper
limbs.
…
In consultation today Mr Cizmar presents with the following:
1. Posterior thoracic pain in association with id thoracic disc herniation.
2. Posterior cervical pain and bilateral upper limb radicular pain in association
with multilevel foraminal stenosis.
3. Complex regional pain syndrome of peripheral aspect of the upper limbs.
….
The additional diagnosis of complex regional pain syndrome type 1 appears to have
commenced following a right-sided C5 perineural local anaesthetic and steroid
injection. This is an unusual stimulating event for complex regional pain syndrome
however the timeline makes this a probable initiating factor for complex regional pain
syndrome.
….
At present there is no clear treatment plan for complex regional pain syndrome in Dr
Wallace's report.
1. There is no current analgesic treatment plan.
2. There is no prescriptive exercise program.
3. There is no current interventional program other than consideration for spinal
surgery under Dr Sheridan's care.
…..
Complex regional pain syndrome of the hands is not being currently actively treated.
In the absence of engagement in active hand physiotherapy together with
modification of distress under the care of a clinical psychologist, Mr Cizmar is unlikely
to make significant clinical gain in this arena.
…..
Complex regional pain syndrome does need to be aggressively treated at present in
particular with a focus on modification of current fear avoidance behaviour,
engagement in desensitisation techniques as well as range of motion exercises.”

Dr Glen Smith

Dr Smith, Consultant Psychiatrist, provided an initial report dated 24 February 2023[10] and a supplementary report dated 18 May 2023[11].
[10] ARD page 51 Report Dr Glen Smith dated 24 February 2023.
[11] AALD dated 16 June 2023 page 1 Supplementary Report Dr Glen Smith dated 18 May 2023.
Dr Smith provided a very detailed overview of the applicant’s medical history including consideration of the following material:
“1. Section 78 Notice with annexures dated 7 November 2022;
2. Insurer IME Report of Dr David Gorman dated 8 April 2022;
3. Insurer IME Report of Dr Ross Mellick dated 9 September 2022;
4. Supplementary report of Associate Professor Boesel dated 10 February 2023;
5. Report of Associate Professor Boesel dated 13 December 2021;
6. Statement of Stevan Cizmar dated 5 December 2022;
7. Letter to Lee Legal requesting 287 A review request with annexures, and
8. Your letter of instruction dated 21 February 2023.”
In his initial report, repeated in his supplementary report, he dealt with the alternate diagnosis propounded by Dr Gorman.
“Dr Gorman noted prominent ‘somatisation’ in Mr Cizmar’s presentation and Mr Cizmar presented with some symptoms consistent with the diagnosis of somatic symptom disorder, namely, distressing and disrupting pain, with preoccupation with his health concerns. The core feature of this condition is ‘excessive’ and ‘disproportionate’ preoccupation with the thoughts regarding the seriousness of his medical condition. Given that Mr Cizmar suffered a neck injury requiring an operation by Professor Sheridan and he has been diagnosed by his treating practitioners and Associate Professor Boesel with CRPS, in my opinion, it is not clear that his preoccupation with his pain is disproportionate to his pathology.
Based on the history provided by Mr Cizmar, the mental state examination and considering all of the available documentation, it is my opinion the Mr Cizmar presented with symptoms consistent with the diagnosis of persistent depressive disorder, with persistent major depressive episode, with anxious distress that developed in the context of the persistent pain and limitation in functioning after the injury that he suffered in April 2019.” (my emphasis)
In his supplementary report he dealt with the diagnosis and opinion provided by Dr Gorman and Dr Bisht. He concluded, after having reviewed his first report and the report of Dr Bisht dated 10 May 2023, that the applicant was suffering from persistent depressive disorder, with persistent major depressive episode, with anxious distress. He confirmed that he did not consider that the applicants physical symptoms were disproportionate to his pathology. (my emphasis)

Dr Gorman

Dr Gorman provided two reports. For his first report dated 8 April 2022[12] he reviewed the following reports:
[12] REPLY page 93.
(a)    report from Dr Mahboob Sadiq (general practitioner) dated 2 April 2019;
(b)    investigation reports as outlined below;
(c)    various other letters from Dr Sadiq;
(d)    report from Associate Professor Mark Sheridan dated 4 June 2019;
(e)    other letters from Associate Professor Mark Sheridan;
(f)    report from Dr Laurent Wallace (pain specialist) dated 24 July 2019;
(g)    further reports from Dr Wallace;
(h)    IME Report by Dr Jane Standen (pain medicine physician) dated
12 November 2019;
(i)    report from 'Active Solutions Health' dated 9 December 2019;
(j)    IME Report from Dr Andrew Keller (occupational physician) dated
13 December 2020, and
(k)    IME Report from Associate Professor Tillman Boesel dated 13 December 2021.
Mr Cizmar brought in the MRI of the cervical spine dated, 16 March 2020 and the bone scan, dated 30 April 2020.
For his supplementary report dated 12 June 2023 [13] he reviewed the following reports:
(a)    Dr Wallace dated 24 July 2019, 14 August 2019, 28 August 2019 and
25 September 2019;
(b)    reports of Dr Keller dated 18 December 2020;
(c)    Dr Ross Mellick dated 09 September 2022 and 05 October 2022;
(d)    Dr Boesel dated 10 February 2023;
(e)    Dr Glen Smith dated 24 February 2023 and 18 May 2023;
(f)    Dr Bisht dated 10 May 2023, and
(g)    his own report dated 5 April 2022.
[13] AALD dated 26 June 2023 page 1.
He concluded:
“While some of his symptoms were suggestive of complex regional pain syndrome, I
did not find evidence of complex regional pain syndrome and I agreed with Dr Standen that, symptoms such as this following a right sided C5 perineural local
anaesthetic injection are ’an unusual stimulating event for complex regional pain
syndrome’.
I noted in my report that Dr Keller saw high levels of displayed disability with
significant inconsistencies suggesting ’at least some level of psychological overlay
with regard to his physical presentation as detailed under the examination above’.
……
In summary, the diagnosis of a somatoform disorder (such as a Functional
Neurological Disorder) is a combined diagnosis of a Psychiatrist and a specialist
such as a Neurologist or a Pain Specialist.
……..
As Dr Boesel states,the cervical transforaminal epidural injection is an ’exceptionally
rare cause of CRPS’. As stated above, I do not believe that Mr Cizmar has CRPS
now and believed that his severe pain (‘10/10’) and symptoms were prior to the
injection and not necessarily caused by the injection.
…………………
I note that Dr Boesel has a scientific paper outlining the fact that this has occurred
previously. I would accept that but as he states, it is extremely rare. Many hundreds,
if not thousands of cervical nerve root injections are done annually in Australia and
we do not see this reaction.
CRPS can arise from relatively minor injuries to the limb. It is therefore not
completely inconceivable that an injection to a nerve that supplies the limb could
cause such a reaction. However, when considering the totality of the clinical
presentations as noted above and in my and other practitioner’s report, I do not
believe that the injection caused a Complex Regional Pain Syndrome to occur in the
right upper limb.” (my emphasis)

Dr Bisht

Dr Bisht provided a short report in which the doctor diagnosed a somatic symptom disorder. The doctor appears to be focused on distinguishing between a diagnosis of persistent depressive disorder and a diagnosis of a somatic symptom disorder. The core of the report is as follows:
“DSM 5 requires that the following criteria are fulfilled
• One or more physical symptoms that are distressing or cause disruption in
daily life (in the client’s case, this holds, in regard to the reported back pain)
• Excessive thoughts, feelings or behaviours related to the physical symptoms
or health concerns with at least one of the following:
o Ongoing thoughts that are out of proportion with the seriousness of
symptoms
o Ongoing high level of anxiety about health or symptoms
o Excessive time and energy spent on the symptoms or health concerns
• At least one symptom is constantly present, although there may be different
symptoms and symptoms may come and go
The client meets all of the above criteria”

Respondent’s submissions

The applicant listed the symptoms that he was experiencing at the time he made his statement of 5 December 2022.[14] The respondent submits that symptoms are insufficient to establish that the applicant has ever had CRPS. Dr Gorman, a pain specialist who examined the applicant for the insurer, determined that the applicant did not have CRPS but instead provided an alternative diagnosis of Functional Neurological Syndrome.
He stated:
“I do not believe that he actually suffered complex regional pain syndrome as a result of the incident of 2 April 2019. As Dr Standen said, it would be very unusual. There almost always needs to be some injury to the limb, and this did not occur in this case. He has had
variable symptoms, and, as outlined above, does not have sufficient findings consistent with CRPS to warrant that diagnosis now. In the past, his main symptoms have been the subjective sensory ones in the upper limbs, along with coolness and the skins of the limbs. These findings can be associated with cervical spine, normal injury, and this is more likely to be the cause of the upper limb changes in temperature and sensation. As well, the symptoms are magnified by his somaticisation "Functional Neurological Syndrome”.[15]
[14] ARD pages 1 to 19.
[15] Reply page 99 Report 8 April 2022 page 8.
The applicant bears the burden of proof and must discharge that onus. As there are alternative diagnoses for the plaintiff’s condition, the applicant must establish a chain of causation from the injury to any of the symptoms relied upon to enliven the diagnosis of CRPS. The applicant must identify the facts that demonstrate the causal connection and the Commission must be actually persuaded on the balance of probabilities as to the existence of those facts[16].
[16] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 and Briginshaw v Briginshaw (1938) 60 CLR 336.
The injection as a chain of causation is not available to the applicant. The respondent firstly argues this proposition because of the unlikelihood of there being a connection to the injection. This is said to be apparent from the opinions of each expert who has considered whether the symptoms can be explained by reference to the injection. I have extracted that part of the respondent’s submission below.
10. In chronological order, those comments, with emphasis added by the author of
the submissions, are:
10.1 Dr Laurent Wallace, 25 September 2019 (ARD 98):
‘Possible CRPS, right greater than left hand, but a right C6
perineural injection by a radiologist is a very unusual trigger for
this in my mind.’
10.2 Dr Jane Standen 12 November 2019: (ARD 460):
‘The additional diagnosis of complex regional pain syndrome type
one appears to have commenced following a right-sided C5,
perineural local anaesthetic and steroid injection. This is an
unusual stimulating event for complex regional pain syndrome.
However, the timeline makes this a probable initiating factor for
the complex regional pain syndrome.’
10.3 Associate Professor Tillman Boesel: 10 February 2023 (ARD 40):
‘I accept that this is an exceptionally rare cause of CRPS, but there
is a close temporal relationship between the onset of symptoms,
which were severe and the injection.’
10.4 Dr David Gorman: 12 June 2023 (respondent’s second AALD 7):
‘I note that Dr Boesel has a scientific paper outlining the fact that
this has occurred previously. I would accept that, but as he states,
it is extremely rare. Many hundreds, if not thousands of cervical
nerve root injections are done annually in Australia and we do
not see this reaction’.”
As a necessary causal link the respondent suggests that the injection is too thin or attenuated[17] to be accepted. Although the applicant relies upon Dr Standen and Associate Professor Boesel the respondent submits that the applicant cannot rely on Dr Michael Davies or Dr Wallace. Dr Davies notes the diagnosis but does not accept it. Dr Wallace does not support the connection. He considered the possibility but did not adopt it. Dr Gorman[18] interprets Dr Wallace as confirming severe psychological distress and not a diagnosis of CRPS:
“I agree with Dr Wallace’s conclusion, and interpret this as not
confirming the diagnosis of CRPS at all, but confirming the severe
psychological distress that (the applicant) was exhibiting, and also
confirming the widespread and unusual nature of his symptoms.”
[17] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
[18] Respondent’s second AALD page 4.
The applicant took the Commission to the report of Dr Wallace[19] of 28 August 2019 but did not refer to the report of Dr Wallace dated 24 July 2019 which preceded the injection.[20] The respondent submits this report is relevant because:
“Both Dr Standen and A/Prof Boesel base their opinion that the injection can be implicated on their respective views that relevant symptoms followed the injection and were not present before.”[21]
[19] ARD page 472 dated 28 August 2019.
[20] ARD page 91 and page 164.
[21] Respondent’s submissions paragraph 15.
The respondent submits that Dr Standen and Associate Professor Boessel have not had the opportunity to consider how strongly the alternative explanations of somatisation, propounded by Dr Gorman, or somatic symptom disorder, propounded by Dr Bisht, is supported by the report of Dr Wallace of 24 July 2019. Dr Wallace noted the extreme results of psychometric testing[22], psychological co-morbidities, including depression, anxiety, distress, low self-efficacy, and catastrophic thinking as well as that the right upper limb symptoms were not completely dermatomal;
“…[the applicant] describes the central pan as screwdriver-type pain. He gets a burning
type sensation in his right scapula. He gets a pins and needles type pain
affecting most of the right upper limb, particularly C6 and sometimes
C8 dermatomes. Severity is up to 10/10 and averages 9/10. It tends to
be problematic at night, early in the morning and then progressively
worse from 3 pm in the afternoon… There is not much relief from
medications.”[23]
[22] ARD page 164 and ARD page165.
[23] ARD page 164.
Opinion evidence needs to be properly based in order to be probative[24] and “... the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.[25] The opinion evidence of Dr Gorman meets that standard but the opinions of Dr Standen and that of
[24] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 per
McColl JA at [127].
[25] Onesteel Reinforcing Pty Ltd v Sutton.
Associate Professor Boesel do not because neither doctor addresses manner in which the applicant had presented to Dr Wallace prior to the injection.”
The respondent criticises Dr Standen’s conclusions because she records that the applicant described both posterior thoracic and cervical and right upper limb radicular pain[26] whereas Dr Wallace noted the right upper limb pain of the applicant did not follow a completely dermatomal pattern. Dr Standen was incorrect in her opinion that Dr Wallace had considered it radicular. Also, Dr Standen was unaware of the recording of symptoms by Dr Wallace, including catastrophizing, supporting the conclusion of a somatoform disorder in existence prior to the injection.
[26] ARD page 460.
The respondent hypothetises that Associate Professor Boesel may not have been provided with Dr Wallace's report of 24 July 2019 because there is no reference in his report to the symptoms described in the report.
By contrast the respondent submits that Dr Gorman considered the symptoms in this report in depth and his evidence demonstrates that the argument that an exceptionally rare event has caused the applicant to experience CRPS is fallacious.
The second limb of the respondent’s submissions is that, although Dr Sadiq[27] and Dr Wallace noted that the applicant experienced symptoms immediately subsequent to the injection, this does not necessarily indicate a CRPS. Dr Gorman’s evidence is that a perineural spinal injection:
“can cause neuropathic pain in limbs which can result in changes in colour and abnormal sensation in the upper limbs.[28]
……….
There is no doubt that an injection such as this could mimic some symptoms. Injections of steroids often cause a flushing-type reaction, as can injections of local anaesthetics. This would have been superimposed on Mr Cizmar’s ‘burning pain’ and ‘9/10’ right upper limb, pain that Dr Wallace had reported on prior to the injection.”[29]
[27] Report of Dr Sadiq dated 26 August ARD page 252.
[28] Report of Dr Gorman 8 April 2022.
[29] AALD 5.
The respondent submits that this alternate possibility was not addressed by
Associate Professor Boesel and that this is the most likely explanation for the symptoms noted.
Dr Gorman states that there is no doubt concerning the propensity for steroid injections to mimic some of the CRPS symptoms. This is not challenged by the applicant.
In conclusion, the respondent provided the following something summary:
“The applicant has failed to discharge the very challenging onus that an
extremely unusual event has taken place, namely that a perineurial injection has
given rise to CRPS. An alternative explanation is available, one which, in
contrast to the applicant's thesis, is readily acceptable.
The following then it is clear
The proposition that the injection of 21 August 2019 has caused a CRPS
requires the Commission to conclude that an event described as
exceptionally rare has taken place.
The proposition that the exceptionally rare event has occurred is based on the appearance of some recorded symptoms subsequent to the injection, yet those symptoms can be explained in as a commonly encountered reaction to steroids and local anaesthetics, rather than the
emergence of a CRPS.
The treating pain specialist did not endorse CRPS, and provided a basis for his not doing so.[30]
A second pain specialist, Dr Michael Davies, saw the applicant on 6 July 2020 at the request of the treating neurosurgeon, and while noting a number of symptoms and signs consistent with CRPS, declined to make the diagnosis, stating rather: ‘Stevan has widespread pan of uncertain aetiology[31]. Thus no treating specialist supports the diagnosis.
Dr David Gorman, described by A/Prof Boesel as having been grandfathered in to the fellowship of the faculty of pain medicine of the Australian and New Zealand College of Anaesthetists, is demonstrated to have pre-eminent qualifications for the diagnosis of CRPS, he having been in for many years the only pain specialist working as an assessor of permanent impairment for the Motor Accidents Authority, the PIC and its predecessor the WCC, and having authored works for presentations on the subject.
The presentation to Dr Wallace on 24 July 2019 is, in the opinion of Dr Gorman, highly relevant to the question of whether a CRPS has resulted from the injection on 21 August 2019, yet that presentation has not been considered by the two medical practitioners who have completed [sic] that the injection has triggered a CRPS.
CRPS was not present on 8 April 2022[32]and there has been no diagnosis of that condition subsequent to that date or indeed subsequent to 13 December 2021.
Such symptoms as have been considered consistent with CRPS are explicable without recourse to the exceptionally rare event on which the applicant must rely.”
[30] ARD page 164 Report Dr Wallace 24 July 2019.
[31] ARD page 183.
[32]REPLY page 98-99.

Applicant’s submissions

I have set out the applicant submissions in full. They are concise and to the point and there is no benefit to be had by summarising them;
“1. The opinion of Dr D Gorman is based on a belief that for CRPS to develop ‘[T]here almost always needs to be some injury to the limb, and this did not occur in this case[33]. Dr Gorman accepted that the Applicant’s symptoms at times were ‘suggestive of Chronic Regional Pain Syndrome (CRPS) in the upper limbs’, but because there had been no injury to the upper limbs, he dismissed the diagnosis. Dr Gorman than diagnosed a somatoform disorder, being a ‘Functional Neurological Disorder’.
[33] Report of Dr Gorman 8 April 2022 Reply page 92.
2. Dr Gorman does not have the relevant expertise to make such a diagnosis. This opinion ought to be given no weight.
3. Associate Professor Boesel produced a case study that confirmed that CRPS can develop in circumstances that are identical to the present circumstances, that is following a cervical peri-neural injection.
4. The Respondent has failed to address the case study relied on by Associate Professor Boesel to support his opinion that, even though the injection was an “unusual” event to trigger CRPS, there is case study evidence to support the causal relationship/connection.
5. Dr Gorman reviewed the case study, and in his report dated 12 June 2023 conceded that CRPS can arise from relatively minor injuries and that it was ‘conceivable that an injection to a nerve that supplies the limb could cause such a reaction’[34], but again dismissed the diagnosis in preference for the somatoform disorder, because of the ‘totality of the clinical presentations’.
[34] Application to Admit Late Documents, lodged on 26 June 2023, p 1.
6. The concession was appropriately made, but Dr Gorman’s explanation for not accepting that the CRPS was caused/materially contributed to by the injection is inadequate, and does not properly grapple with the correct test to be applied in respect of consequential conditions, which is a commonsense evaluation of the chain of causation. The injection was treatment for the original injury. The Applicant developed physical symptoms immediately, and they persisted. These were recorded and observed by various medical experts who made a diagnosis of CRPS, despite the fact that the trigger was ‘unusual’. Even though Dr Standen and Dr Wallace considered that the injection was an unusual trigger, they both considered that the clinical presentation of the Applicant qualified him for a diagnosis of CRPS. There was no equivocation concerning the diagnosis.
7. The Respondent’s submissions made at [12] that Dr L Wallace does not support the causal connection are not sustainable. Dr Wallace in his report dated 25 September 2019[35], stated that his impression, explaining the Applicant’s symptoms, was that he has CRPS, right greater than left, but he expressed doubt as to the causal link because ‘a right C6 perineural injection by a radiologist is a very unusual trigger for this in my mind’. That same doubt was expressed by Dr Standen. Neither of them had a copy of the case study referred to by Associate Professor Boesel. They have both however diagnosed CRPS. This of itself delivers a fatal blow to the hypothesis proposed by the Respondent that the Applicant has a somatoform disorder.
8. The Respondent’s submission at [12] that Dr M Davies, treating pain specialist, ‘notes but does not adopt the diagnosis’ is misleading. He says that the Applicant “has a number of signs and symptoms that are consistent with CRPS’[36]. ‘Signs’ are objective (whereas symptoms are subjective) and it is clear that Dr Davies was persuaded that the Applicant had signs consistent with CRPS.
9. Dr M Sheridan was the Applicant’s treating neurosurgeon who carried out the neck surgery on 10 January 2020. He too expressed the view that the Applicant ‘still had symptoms of CRPS.’[37]
10. The question for the Commission is whether the causal link is established. The Commission has before it a case study which supports the connection. It is a case study in which a person developed CRPS as a result of a peri-neural injection into the cervical spine. This evidence is powerful and compelling. Applying commonsense to the evaluation of the chain of causation, the Commission would have no trouble accepting the causal link on the balance of probabilities based on the opinion of Associate Professor Boesel, and the case study which supports his opinion.
11. The assertion made in the Respondent’s submissions at [16] that the report of Dr Wallace dated 24 July 2019[38] ‘supports the alternative explanation for the applicant’s symptoms, that of somaticisation (Dr Gorman) or somatic symptoms disorder (Dr Bisht)’ ought to be rejected.
12. It is irrelevant whether the Applicant had ‘catastrophic thinking’ before the injection. He did not develop CRPS before the injection. The symptoms he was complaining of prior to the injection, as set out in Dr Wallace’s report dated 24 July 20196, related to his cervical spine injury, for which he later had fusion surgery.
13. The Respondent’s submissions made at [23]-[27] are irrelevant to the issue before the Commission. The cervical spine injury is an accepted injury for which the Applicant underwent surgery in the form of a C5/6 and C6/7 anterior cervical discectomy and fusion on 10 January 2020.
14. The Respondent’s submissions made at [32] are misconceived. There is sufficient evidence before the Commission for the Commission to make a determination on whether there is the evidence to support a diagnosis of CRPS and whether the causal link has been established.
15. A dispute has been raised by the insurer as to diagnosis and causation. There is a contest between the parties. However, Associate Professor Boesel is not simply propounding a ‘thesis’ as suggested by the Respondent. Associate Professor Boesel has based his opinion on his expertise, his clinical examination and his training, skill and experience. His opinion is supported by an independent case study, which has standing and force. The case study has not been challenged by the Respondent’s expert. In fact, Dr Gorman concedes it is conceivable. It is the Respondent’s medical experts that are propounding a ‘thesis’ that the Applicant has a somatoform/psychiatric disorder. This is put forward as an alternate hypothesis to explain very real, observable, physical symptoms. The diagnosis of CRPS is made by many specialists and ought to be accepted.
16. The alternate hypothesis ought to be rejected.”
[35] Application to Resolve a Dispute (ARD), p 160.
[36] ARD, p 182.
[37] ARD, p 156.
[38] ARD, p 91 and p 164.

Consideration

This is an application where the medical opinions are unusually diverse. Despite that divergence, it is not an application that requires complicated decision-making. A chain of causation must be established on an evidentiary basis on the facts of this particular case.

The different alternate diagnoses of Dr Smith and Dr Bisht

With regard to the applicant, Dr Bisht found excessive thoughts, feelings and behaviours related to his physical symptoms or health concerns with ongoing thoughts that were out of proportion with the seriousness of his symptoms, ongoing high levels of anxiety about health or symptoms and excessive time and energy spent on his symptoms or health concerns. I can see no basis for these findings. The applicant’s conduct appears to me to be consistent with the history of his physical injuries and the conclusions drawn by the applicant’s treating doctors, and reasonable in all the circumstances.
Having reviewed the applicant’s history, his treating doctor’s medical reports and his statement, I do not consider the applicant’s ongoing thoughts to be out of proportion with the seriousness of his symptoms, that he is excessively anxious or that he has spent an excessive amount of time and energy on his health concerns. I consider his focus on and anxiety about his health to be reasonable in all the circumstances.
I find Dr Bisht’s report superficial, and I reject his alternate diagnosis of a somatic symptom disorder.
I accept Dr Smith’s conclusions set out in his detailed report. I find that applicant has suffered depression and is distressed. It is hard to understand how he wouldn’t be depressed and distressed in the circumstances in which he finds himself. Despite his finding of depression, Dr Smith makes it clear that he does not consider the applicant’s reaction to be excessive or disproportionate having regard to his medical condition. Neither do I.

The alternate proposition propounded by Dr Gorman that the applicant’s symptoms might have been an ordinary/commonplace reaction to a steroid injection

It was suggested by Dr Gorman and submitted by the respondent that the applicant’s symptoms might be explained by a commonly encountered reaction to steroids and local anaesthetics. Dr Gorman referred to the vast number of these injections that take place in ordinary medical practice without consequences. There is no evidence before me that these symptoms might be in fact be a commonly encountered reaction except for the assertion by Dr Gorman. I would expect the treating doctors to have looked for it and diagnosed it. They did not. I am not persuaded that what occurred to the applicant was more likely to be a commonly encountered reaction to steroids and local anaesthetics than CRPS.

The alternate diagnosis propounded by Dr Gorman of a somotoform disorder, a functional neurological disorder

Dr Gorman spent some time in his report defending his reputation against a perceived adverse inference drawn by Associate Professor Boesel. This was not helpful to the Commission.
Dr Gorman argued strongly for an alternate diagnosis and explanation for the pain suffered by the applicant. The diagnosis he proffered is not directly within his specialty although, in the course of his long and distinguished career, I am sure he has acquired relevant experience in circumstances similar to that suffered by the applicant.
Despite that experience I prefer the opinion of Dr Smith to that of Dr Gorman as to the psychiatric state of the applicant arising from the injury and incapacity he has suffered. The applicant had severe physical symptoms before he consulted Dr Wallace on 28 August 2019. He was in great pain and he later had a two level fusion to treat the pain arising from his injury. I am satisfied that it would be perfectly reasonable for him to think he had been involved in a personal catastrophe. He had been. The fact that the applicant might have had catastrophic thoughts at that stage of his treatment does not persuade me that the alternate diagnosis proposed by Dr Gorman is preferable. I am satisfied that the applicant’s reaction was reasonable.

The unlikeliness of the injection causing the applicant to suffer CRPS

Whilst Dr Wallace, Associate Professor Boesel and Dr Standen consider the causation of CRPS by the injection to be unusual, or even extremely rare, no medical practitioner has suggested it is impossible. Not even Dr Gorman. Dr Gorman accepts that it is possible.
There is a factual case study supportive of the applicant’s submission referred to and relied on by Associate Professor Boesel. The credibility of this case study is not called into question by the respondent. This case study supports the medical conclusion that an injection of the kind given to the applicant is capable of being the cause of CRPS.
I do not accept the submission that Dr Wallace and Dr Davies declined to make a diagnosis of CRPS. A diagnosis of CRPS is rare and the injection as a possible cause of CRPS even rarer. No sensible treating doctor would leap to such an early diagnostic conclusion. They noted the symptoms. CRPS was raised as a possible diagnosis early on even though it was not immediately adopted by them. There is no reason why it would be immediately adopted. Injections are an acknowledged very rare cause of CRPS. The situation demanded caution.
However, the facts have been put to two eminent independent pain specialists, who both considered the applicant’s treatment history. They both examined the applicant and the medical reports with great particularity and produced thoughtful conclusions. I consider that those conclusions should be taken seriously and given weight, despite the unusual or rare nature of the causative link between the injection and the outcome for the applicant. I have not been persuaded to reject the thoughtful opinions proffered by the independent medical specialists because some other cause could be considered a more likely possibility.
I am satisfied and find that there is a direct causative link, a chain of causation, between the injection and the applicant’s symptomatology and his condition which I am satisfied is CPRS.
I find that applicant’s condition of CRPS is consequential upon the treatment he received for the injury he suffered in the employ of the respondent on 2 April 2019.
The effects of the CRPS and what consequential impairment exists is a matter for a Medical Assessor applying the appropriate guidelines.

SUMMARY

There will be an award in favour of the applicant in respect of a consequential condition of CRPS arising from the medical treatment, an injection, undergone by the applicant for treatment of the injury he suffered in the employ of the respondent on 2 April 2019.
The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
(a)    Date of injury: 2 April 2019;
(b)    Body system: cervical spine, thoracic spine, lumbar spine and the condition of CRPS;
(c)    Method of assessment: whole-body impairment, and
(d)    Documents to be referred: Application to Resolve a Dispute and attached documents, Reply and attached documents and Applications to admit late documents and attachments.

[2023] NSWPIC 483

19 September 2023