De Matos v Wideform Pty Ltd
[2021] NSWPIC 67
•7 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | De Matos v Wideform Pty Ltd [2021] NSWPIC 67 |
| APPLICANT: | Antonio De Matos |
| RESPONDENT: | Wideform Pty Ltd |
| MEMBER: | Ms Rachel Homan |
| DATE OF DECISION: | 7 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly compensation and section 60 expenses; accepted injury to right hand; applicant subsequently certified fit for pre-injury duties; onset of clicking and triggering in right thumb around 18 months after injury; disputed consequential right thumb condition; Held- opinions of applicant’s treating practitioners and independent expert were consistent and reasoned; respondent’s expert opinion lacked clarity and failed to engage with history, contemporaneous medical evidence and findings on examination of ongoing symptoms and restrictions in injured index finger; applicant sustained consequential right thumb condition; respondent to pay the applicant’s incurred section 60 expenses and weekly compensation in accordance with the applicant’s wages schedule. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a consequential condition at the right thumb as a result of the injury on 25 July 2018. The Commission orders: 1. The respondent to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 from 31 July 2020 to date and continuing in accordance with the applicant’s wages schedule dated 1 March 2021. 2. The respondent to pay the applicant’s incurred s 60 expenses in respect of the consequential right thumb condition upon production of accounts, receipts and / or Medicare Notice of Charge. |
STATEMENT OF REASONS
BACKGROUND
Mr Antonio De Matos (the applicant) was employed by Wideform Pty Ltd (the respondent) as a carpenter. On 25 July 2018, the applicant sustained an injury to his right hand whilst using a circular saw. Liability for the injury to the applicant’s right index finger, middle finger and palm was accepted by the respondent’s insurer.
The applicant underwent surgery to his right hand and returned to work. In October 2018, the applicant was certified as fit to return to his pre-injury duties.
On 12 May 2020, the applicant sought approval for an ultrasound guided injection to his right thumb. On 20 May 2020, the insurer issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the proposed treatment for the right thumb was reasonably necessary as a result of the injury on 25 July 2018.
A further dispute notice maintaining the decision to dispute liability for the right thumb treatment was issued pursuant to s 78 of the 1998 Act on 26 June 2020.
The applicant sought review of the insurer’s decision on 14 July 2020 pursuant to s 287A of the 1998 Act. On 29 July 2020, a further notice was issued maintaining the decision to dispute liability for treatment to the right thumb.
On 4 August 2020 the insurer wrote to the applicant indicating that his entitlement to weekly payments and medical and related expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act) had ceased. The applicant was advised that his claim would be finalised.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 15 January 2021. The applicant sought weekly compensation from 31 July 2020 and expenses pursuant to s 60 of the 1987 Act in respect of treatment to his right thumb.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 9 March 2021. The applicant was represented by Mr Mark Boulton of counsel, instructed by Mr Chris Shepard, solicitor. The applicant was assisted by an interpreter in the Portuguese language. The respondent was represented by Ms Lyn Goodman of counsel, instructed by Ms Robyn Hickie, solicitor. A representative from the insurer was also present.
During the conciliation conference, leave was granted to the applicant to amend the claim for weekly compensation to commence on 25 July 2018 in accordance with an amended wages schedule, dated 1 March 2021.
The parties were able to reach agreement to resolve the claim for weekly compensation during the period 25 July 2018 to 30 July 2020 and a Certificate of Determination - Consent Orders was issued. The parties were unable to resolve the claim for weekly compensation on and from 31 July 2020 or the claim for s 60 expenses.
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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained a consequential right thumb condition as a result of the injury on 25 July 2018;
(b) the applicant’s entitlement to weekly compensation on and from 31 July 2020, and
(c) the applicant’s entitlement to compensation pursuant to s 60 of the 1987 Act in respect of the right thumb.
During conciliation, the respondent indicated that there was no dispute with regard to the figures and dates set out in the applicant’s amended wages schedule of 1 March 2021 as it related to the period on and from 31 July 2020. In the event of a favourable determination for the applicant in respect of the alleged consequential right thumb condition, the respondent agreed that the applicant would be entitled to weekly compensation on and from 31 July 2020 in accordance with the amended wages schedule.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 15 February 2021;
(d) documents attached to an Application to Admit Late Documents lodged by the respondent on 22 February 2021;
(e) documents attached by an Application to Admit Late Documents lodged by the applicant on 23 February 2021, and
(f) documents lodged by the applicant on 9 March 2021.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in a written statement made by him on 17 December 2020.
The applicant described the injury on 25 July 2018. The applicant was using a circular saw to cut plywood when a small piece of wood got caught in the saw and jammed the blade. As the applicant removed the piece of wood with his right hand, the blade completed its rotation and cut his right index finger, middle finger and palm.
The applicant was taken to Wollongong Hospital and subsequently treated at Wollongong private hospital by plastic and reconstructive surgeon, Dr Rob Knight. K wires were inserted into the applicant’s fingers and removed after about seven weeks.
The applicant commenced weekly hand therapy with Nicole Ekman in or about August 2018.
On or about 14 August 2018, the applicant returned to work performing suitable duties and reduced hours. The applicant initially did yard and workshop duties but eventually returned to doing some building work. The applicant never returned to normal duties.
The applicant said he experienced difficulty lifting with his right arm and hand and his grip on tools also changed.
In February 2019, the applicant was sent to work on a job which involved a lot of use of a hammer. The applicant did this job for about two months, working normal hours. On 12 March 2019, a certificate of capacity was issued indicating that the applicant was to avoid safety critical tasks requiring good grip strength. It was noted that the applicant was unable to use a hammer or work on-site full-time.
On or about 10 April 2019, the applicant was sent to work in the workshop and yard. The applicant operated machines to cut plywood and used a hammer to make shutters.
The applicant went on holidays to Portugal for a month in early December 2019. The applicant returned to work in early January 2020 and began to experience symptoms in his right thumb.
On or about 16 April 2020, the applicant was sent to work on a job for Qantas at Mascot. The applicant had to help out putting together shutters in preparation to pour concrete. The applicant used the hammer less at this job.
The applicant was booked in to have a thumb injection on 21 May 2020 although it was cancelled as the insurer would not agree to pay for it.
On 29 June 2020, the applicant went to work on a job at Campbelltown Hospital putting up formwork. The applicant only had to use a hammer occasionally.
Throughout all of these months, the applicant’s thumb was painful.
On 31 July 2020 the applicant had a meeting with his supervisors who advised that the applicant could not work until doctors said that his hand was better and he was fully fit for work. It was noted that the workers compensation insurer was closing the applicant’s case.
The applicant described the onset of symptoms in his right thumb:
“Throughout 2020 my right index finger swelled and was stiff. There is also a numbness in it. It is more painful in cold weather.
My fingers are worse in the morning. It takes me a while to get them moving.
The changes to my fingers - particularly my right index finger - meant I had to change the way I held a hammer and other tools. My right index finger does not fully bend into the palm of my hand. I cannot make a full fist. The first joint in my right index finger is missing and therefore it doesn't bend. I have also lost grip strength.
Due to the loss of movement and the loss of grip strength in my right hand, I have difficulty gripping and controlling tools (particularly the hammer). I had to change how I held the hammer in my right hand. I had to use my thumb more and to wrap it around the hammer to use and control it.
In or about January 2020 I started to get clicking and triggering in my right thumb. The symptoms were pain in the thumb and it becoming stuck in a position. I had to force the thumb into a straight position.”
The applicant said he had not worked since 31 July 2020 when his employer informed him that there were no suitable duties available to him. The applicant was required to take leave until his thumb injury had improved to the point that he could work on normal duties. The applicant was using personal leave.
The applicant said that prior to the accident on 25 July 2018, he had no problem with his right hand and was able to do manual work for long hours without restriction.
Treating medical evidence
A report from plastic and reconstructive surgeon, Dr Robert Knight to the applicant’s general practitioner, dated 25 July 2018, described the injury occurring that day and confirmed that the applicant underwent surgery to his right hand:
“Under general anaesthetic we explored Antonio's hand and it would seem as though the blade has caused significant injuries to the distal interphalangeal joint. There is a comminuted fracture of the distal aspect of the second phalanx of the right index finger. There is also a fracture of the 3rd phalanx in the right index finger and there was a division of the neurovascular bundle on the ulna side of the right index finger. He also had a 100% division of the FDP tendon which had to be reinserted onto the distal phalanx and also had damage to the collateral ligaments on the ulna side of the distal interphalangeal joint.
We also checked the neurovascular bundle on the radial side of the right index finger and this was functional and well perfused and we also checked the laceration on the right middle finger palmer aspect and checked all the nerves and tendons and they were intact.
Both his areas were irrigated and repaired. The comminuted fracture was reduced using multiple KWires in multiple vectors with as much compression as possible but I suspect that considering the significant injury to the articular surface of the distal interphalangeal joint that in the long term Antonio will either fuse that join or he will get significant arthritis which will necessitate a fusion in the long run.”
On 12 September 2018, Dr Knight provided an update on the applicant’s condition eight weeks after the injury:
“On examination he has a very good index finger which is very functional. He has fully
apposition although the power remains to be seen. He has very stable joints and does not suffer with any pain although I have said to him he may get osteoarthritis. He has good sensation although the finger still has residual swelling but I suspect he should be able to return to his normal duties in approximately 4 weeks time. I have given him a
x-rays form today to check the original fracture in approximately 3 weeks time and we will also be able to let you know whether he can return to unrestricted duties.”On 8 October 2018, Dr Knight reviewed the applicant almost three months since the initial injury. The applicant was reported to be making a very good recovery. The applicant still had some deficit in flexion at the PIPJ but was able to return to work with the trial of a lifting capacity limitation of about 5 to 10 kg for a few weeks.
Dr Knight issued a WorkCover certificate of capacity certifying the applicant as fit for pre-injury duties on 8 October 2018.
Hand therapist, Nicole Ekman prepared a report for the applicant’s general practitioner on 14 January 2019. Ms Ekman noted that the applicant was still experiencing intermittent swelling in the index finger. Grip strength was last measured at 31 kg on the right hand compared to 42 kg on the left. The applicant was progressing well with ROM and strengthening exercises. Ms Ekman considered that the applicant could perform normal work duties as tolerated.
WorkCover certificates of capacity issued by injury and occupational health specialist, Dr Michael Charles from March 2019 certified the applicant as fit for suitable duties which required that he avoid safety critical tasks requiring good grip strength with right hand.
In a report dated 26 September 2019, Ms Ekman reported that the applicant continued to attend the hand therapy sessions once a fortnight. The right index finger was still swollen and sore when cold. The applicant had complained of right lateral elbow pain and shoulder pain, both of which were settling.
On 29 January 2020, Ms Ekman responded to a series of questions from the insurer indicating that the applicant continued to require treatment once per month. It was noted that the applicant may need to rest his right hand from prolonged hammering as he had decreased grip strength due to the injury.
In a WorkCover certificate issued on 18 February 2020, Dr Charles noted:
“Recently developed clicking in right thumb, secondary to altered grip to compensate for impaired finger. Hand therapy for this. May need specialist referral if not settling.”
In a certificate dated 12 May 2020, Dr Charles noted that the applicant would require a cortisone injection to the trigger thumb.
On 20 May 2020, Ms Ekman prepared a report for the insurer with regard to triggering of the applicant’s right thumb. Ms Ekman reported:
“Antonio was seen on 31/1/20 and reported painful clicking of the R thumb with IP flexion. He was prescribed a neoprene sleeve to hold the thumb IPJ in extension at night to help rest the FPL tendon. On next review on 17/3/20, Antonio reported persistent clicking with R thumb IP flexion, despite wearing the neoprene sleeve every night for the past 6 weeks. I felt palpable crepitus of the FPL with active IP fl at the A1 pulley and at volar PP of thumb and advised him to continue wearing the sleeve at night. On next review in clinic, 19/5/20, Antonio reported his work Dr, Dr Charles had referred him for an ultrasound guided CSI for the trigger thumb due to it having not resolved with conservative treatment. I fully support this plan of management as there is still immediate painful clicking and triggering of the R thumb with active and now also with passive IPJ flexion. I made a thermoplastic splint for Antonio to wear post CSI to rest the thumb and prevent IP fl to allow the FPL to heal.
I feel Antonios R trigger thumb has occurred due to decreased AROM of his R IF post circular saw injury on 25/7/18. The IF has limited DIP flexion of 20 degrees, and he is unable to flex the IF fully around items at work such as his hammer. The ulna side of the IF is also numb as a result of the injury to the neurovascular bundle sustained in the circular saw injury, which means that Antonio is unable to judge how much pressure he is putting on an object he is holding with the ulna side of his IF. This would result in him holding more tightly with his thumb and other fingers.”
Ms Ekman said that if the applicant did not have an ultrasound guided cortisone injection for the trigger thumb he would require more hand therapy sessions and longer conservative management to resolve the triggering.
On 1 July 2020, Ms Ekman reported that the applicant had persistent catching with active and passive right thumb IPJ flexion. That had not improved with conservative treatment over the last four months. Ms Ekman again expressed the opinion that an ultrasound guided cortisone injection was required for triggering of the flexor pollicis longus tendon at the A1 pulley level of his right thumb.
On 10 July 2020, Dr Charles, wrote to the insurer regarding the applicant’s right trigger thumb:
“He has had discomfort and catching of the thumb with flexion movements for at least 5 months. Conservative treatment with Hand Therapy (including splinting, exercises) has failed to settle the problem, and he now requires an ultrasound guided steroid injection. This procedure is very often successful, but in some cases minor surgery is required.
Due to the injury to Mr De Matos' right index finger he has permanent loss of flexion movement and grip strength of that digit. He has to compensate by using the thumb more to hold tools (especially a hammer), and for other gripping and manipulating tasks. The altered grasping technique is quite clearly the cause of his thumb symptoms, and is therefore clearly secondary to his compensable finger injury.”
On 31 July 2020, the applicant underwent ultrasound-guided right flexor pollicis longus tendon sheath injection at the request of Dr Charles.
On 22 September 2020, Dr Charles referred the applicant to see hand and wrist surgeon, Dr Peter Scougall. Dr Charles’ referral described the injury and noted that the applicant was right hand dominant:
“He had surgery that night with Dr R Knight at Wollongong Private Hospital, but still has some long term loss of sensation and movement of the finger. He has developed a secondary triggering right thumb. This has partially responded to splinting (South Coast Hand Therapy) and steroid injection. Many thanks for your assessment and advice ? trigger thumb surgery.”
Dr Scougall wrote to Dr Charles on 2 December 2020, diagnosing trigger thumb and index stiffness post laceration. Dr Scougall said treatment for the thumb triggering included splinting, repeat steroid injection or surgical release. The applicant felt that surgical release offered him the best chance of reemployment as a carpenter.
An operation report prepared by Dr Scougall on 12 February 2021, recorded that the applicant had undergone a trigger release of the right thumb
Dr Pillemer
The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr Roger Pillemer dated 3 September 2020.
Dr Pillemer took a history of the injury on 25 July 2018 and subsequent treatment that was consistent with the other evidence. Dr Pillemer noted that the applicant was off work for three weeks and returned on restricted duties until June 2020. The applicant eventually went back to doing some building work but was always restricted with regard to heavy lifting with his right arm and hand.
The applicant had ongoing triggering in his right thumb in January 2020 and had undergone an injection in the base of the thumb and was wearing a splint. The applicant reported discomfort in his index finger, particularly in the cold weather, and pain in the finger which could go as high as 6/10. The applicant was also aware of significant restriction of movement in relation to the index finger and a feeling of numbness distal to the laceration in the region of the DIP joint.
With regard to attributability of the right thumb condition, Dr Pillemer said:
“In my opinion there would be no doubt that the triggering of his thumb is also related to this incident, being a consequential injury as a result of the restricted range of movement of his index finger and the need to exert increased force with his right thumb for activities such as using a hammer. In my opinion it is far more likely than not, that if not for the injury on 25 July 2018, he would not have developed the triggering of his right thumb.”
With regard to the applicant’s capacity for work, Dr Pillemer said:
“In my opinion at this stage he is not fit to do manual work using his right hand because of the ongoing problems with both his thumb and index finger.”
Dr Panjratan
The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Vijay Panjratan, dated 6 May 2020 and 17 June 2020.
Dr Panjratan took a history of the injury and subsequent treatment that was consistent with the treating evidence.
Dr Panjratan recorded that the applicant’s right index finger still swelled and would get stiff. It was painful in the cold. Examination of the index finger revealed that flexion at the MCP joint was 70° as compared to 90° normally and the PIP joint flexion was normal and finger flexion was about 25°.
Dr Panjratan noted:
“He started developing triggering of the right thumb and he is attributing it to the injury. I consider that unrelated to the injury. The left thumb is not affected.”
With regard to capacity for work, Dr Panjratan noted:
“Mr De Matos has suffered a severe injury which has been excellently managed. There is permanent damage and he will not be able to get back to pre-injury duties and that should not be expected after providing summary of the injury and the question is unreasonable.”
In his supplementary report of 17 June 2020, Dr Panjratan was asked to consider Dr Charles’ opinion attributing right thumb clicking to “altered grip”. Dr Panjratan responded:
“I do not consider the thumb clicking is related to altered grip.”
Asked whether altered grip can cause thumb triggering, Dr Panjratan responded:
“It is possible that there could have been an altered grip because of the injury which was predominantly to the right middle finger. I do not think that should have caused thumb triggering. Reflecting on the matter, I consider that the grip could be weaker, rather than altered. I also note that it is mainly the middle finger which is involved which should not cause a significant alteration in the grip.”
With regard to prognosis, Dr Panjratan stated:
“The overall prognosis of the right thumb is that the triggering is likely to persist. A cortisone injection may be helpful, otherwise a simple trigger release would be effective.”
Applicant’s submissions
Mr Boulton submitted that the applicant started to experience symptoms in his right thumb in January 2020.
Mr Boulton referred me to the report prepared by the applicant’s hand therapist, Ms Ekman on 20 May 2020, which described triggering of the applicant’s right thumb since January 2020. Ms Ekman expressed the view that the applicant’s right thumb condition was causally related to the decreased range of motion brought about by the injuries to the other parts of the applicant’s right hand.
Dr Charles also described the thumb symptoms and considered that the applicant required an ultrasound guided injection. Dr Charles gave the opinion that the applicant had a permanent loss of flexion in his finger due to the injury. The applicant had to compensate for this by using the thumb more in holding tools. The altered grasping technique was clearly the cause of the right thumb symptoms and should be compensable.
An independent medicolegal opinion in favour of the applicant’s claim was provided by Dr Pillemer. Dr Pillemer also had no doubt that the triggering of the thumb was related to the incident due to restricted range of motion in the index finger and increased use of force in the right thumb. Dr Pillemer considered it far more likely than not that the applicant would not have developed the triggering if not for the injury.
Mr Boulton submitted that the applicant relied on three specialist opinions in favour of the right thumb condition being causally related to the injury. The respondent’s only evidence was the reports of Dr Panjratan. Dr Panjratan had provided only an unreasoned and unexplained opinion. Given the reasoning and explanation in the reports relied upon by the applicant, and the greater exposure to the applicant’s condition by his treating specialists, the Commission would prefer the applicant’s evidence.
Respondent’s submissions
Mr Goodman referred to the reports of Dr Panjratan and noted his opinion that the right thumb triggering was unrelated to the injury.
Ms Goodman noted that the applicant did not complain of any thumb symptoms until January 2020. No doctor had explained why the applicant did not experience thumb symptoms until that point. It was Dr Panjratan’s view that the symptoms were unrelated to the injury.
Ms Goodman noted that Dr Scougall had not provided an opinion on causation.
Ms Goodman submitted that in the event of a favourable determination for the applicant there should be an order for the recrediting of sick leave.
Applicant’s submissions in reply
Mr Boulton noted that Dr Charles’s referral to Dr Scougall described a secondary triggering of the right thumb which had partially responded to splinting.
Mr Boulton submitted that the applicant’s doctors had provided an explanation for the onset of symptoms. The applicant had restricted range of motion in the index finger and had to grip his hammer is a different way. The applicant relied on the reasoned opinions of three practitioners compared to a bare ipse dixit from Dr Panjratan.
FINDINGS AND REASONS
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It has been accepted by the respondent that the applicant sustained an “injury” pursuant to s 4(a) of the 1987 Act to his right index finger, middle finger and palm. What requires determination is whether the applicant has sustained a consequential condition at his right thumb as a result of the injury to the other parts of the right hand.
It is not necessary for the applicant to establish that any right thumb condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[1] observed at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[1] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[2], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[2] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[3], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[3] (1994) 10 NSWCCR 796 at [810].
His Honour said at[463] – [464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing, on the balance of probabilities, that a consequential condition at the right thumb has been sustained.
There is no medical dispute that the applicant had a condition at his right thumb in the nature of triggering. Nor is there any dispute that the treatment the applicant has undergone for that condition was reasonably necessary. Dr Panjratan accepted in his reports that the applicant had right thumb triggering. Dr Panjratan also accepted that a cortisone injection may be helpful, otherwise a simple trigger release would be appropriate.
There is also no medical dispute that the applicant’s injured right index finger remains symptomatic, notwithstanding the certification by Dr Knight in October 2018 that the applicant was fit for pre-injury duties. Dr Panjratan, for example, took a history of the index finger still swelling and getting stiff and painful in the cold. Dr Panjratan’s examination of the index finger revealed reduced flexion at the MCP joint and finger flexion of about 25°.
Dr Panjratan’s history and examination were broadly consistent with the treating evidence and the reports of the applicant’s expert, Dr Pillemer.
A review of the treating evidence shows that despite a good recovery from the surgery performed by Dr Knight, even at the time the applicant was certified as fit for pre-injury duties, the applicant still had some deficit in flexion and was expected to trial lifting capacity limitation of about 5 to 10 kg for a few weeks.
The reports of Ms Ekman record that the applicant continued to complain of intermittent swelling, pain and reduced grip strength on the right. From March 2019, Dr Charles’ WorkCover certificates recorded restrictions including avoiding safety critical tasks requiring good grip strength with the right hand. The applicant continued to receive hand therapy on a regular basis throughout 2019.
It is clear, therefore, that the applicant never completely recovered from the 25 July 2018 injury, despite the return to work. There is contemporaneous evidence of grip issues, swelling, restriction of movement and pain.
The applicant’s evidence is that he continued to perform physical work involving the use of his hands and tools. The applicant’s uncontradicted evidence is that in February 2019, he worked on a job which involved a lot of use of a hammer. Although he subsequently worked on jobs which required less use of the hammer, this continued to be a feature of his work.
Ms Ekman and Dr Charles both reported an onset of right thumb symptoms in January 2020 consistently with the applicant’s evidence. In his WorkCover certificates from February 2020, Dr Charles attributed the thumb symptoms to altered grip due to compensating for the applicant’s impaired finger. Dr Charles maintained this view in his July 2020 report to the insurer. Ms Ekman also attributed the thumb symptoms to the finger injury buy way of decreased range of motion in the index finger, limited flexion and numbness on the ulna side of the index finger, causing the applicant to be unable to judge how much pressure he was putting on an object he was holding. Ms Ekman said this would result in the applicant holding objects more tightly with his thumb and other fingers.
The clear, consistent and detailed explanation of the causal relationship between the thumb symptoms and the finger injury provided by Ms Ekman and Dr Charles is consistent with the independent expert opinion provided by Dr Pillemer. Dr Pillemer provided an emphatic opinion that there would be “no doubt” that the triggering of the applicant’s thumb was a consequential condition as a result of the restricted range of movement of his index finger and the need to exert increased force with his right thumb for activities such as using a hammer.
Weighing against this consistent body of evidence is the opinion of Dr Panjratan. In his initial report, Dr Panjratan gave no explanation at all for his opinion that the right thumb was unrelated to the injury apart from a confusing reference to the absence of symptoms on the left side.
Dr Panjratan was asked to explain his opinion in the supplementary report. Dr Panjratan’s response was unclear, finding initially that it was possible that there could have been an altered grip because of the injury. Dr Panjratan then referred to the injury as involving predominantly the middle finger and seemed to resile from the view that there was altered grip saying there was only weaker grip. Dr Panjratan reasoned that “it is mainly the middle finger which is involved which should not cause a significant alteration in the grip.”
Dr Panjratan’s reasoning by reference to the middle finger, without reference at all to the history, contemporaneous evidence, and his own findings on examination of ongoing symptoms and restrictions in the index finger, causes me to give considerably less weight to his opinion.
Weighing the evidence as a whole, I prefer the opinions of the applicant’s practitioners. I am satisfied that the applicant sustained a consequential condition at his right thumb as a result of the injury on 25 July 2018.
I am further satisfied that the treatment the applicant has undergone to his right thumb, including hand therapy, cortisone injection and the trigger release by Dr Scougall was reasonably necessary as a result of the injury on 25 July 2018.
There is a consistent opinion in all the medical evidence before me that the applicant has not since 31 July 2020 been fit for pre-injury duties. The evidence is also consistent in indicating that the applicant has not been fit for any work involving manual use of his dominant right hand. The applicant has been employed by the respondent as a carpenter for the last 25 years and appears to remain employed by the respondent albeit on leave. The respondent employer has indicated to the applicant that there are no suitable duties available to him. I am satisfied that the applicant has no current work capacity.
The applicant has provided a detailed wages schedule dated 1 March 2021. The respondent has not disputed that schedule.
I am satisfied, in all the circumstances, that it is appropriate to order the respondent to pay the applicant weekly compensation pursuant to s 37 of the 1987 Act in accordance with the applicant’s wages schedule from 31 July 2020 to date and continuing.
The evidence indicates that the applicant has been paid sick leave during this period. To the extent that the applicant has been paid wages for sick leave, s 50(3) of the 1987 Act will apply.
SUMMARY
The applicant sustained a consequential condition at the right thumb as a result of the injury on 25 July 2018.
The respondent to pay the applicant weekly compensation pursuant to s 37 of the 1987 Act from 31 July 2020 to date and continuing in accordance with the applicant’s wages schedule dated 1 March 2021.
The respondent to pay the applicant’s incurred s 60 expenses in respect of the consequential right thumb condition upon production of accounts, receipts and / or Medicare Notice of Charge.
Rachel Homan
MEMBER
7 April 2021
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