Ferguson v Connemara Jack Pty Ltd
[2024] NSWPIC 592
•22 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ferguson v Connemara Jack Pty Ltd [2024] NSWPIC 592 |
| APPLICANT: | Tamika Ferguson |
| RESPONDENT: | Connemara Jack Pty Limited |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 22 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Whether the applicant suffered consequential condition of complex regional pain syndrome (CRPS) to the upper and lower limbs as a result of an accepted right wrist injury; gaps in the medical evidence; the value of contemporaneous evidence; Nguyen v Cosmopolitan Homes; Kooragang Cement Pty Ltd v Bates; Held – the applicant has suffered a consequential condition of CRPS to the bilateral upper extremities but not the lower extremities resulting from the right wrist injury; matter referred to a Medical Assessor. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a workplace injury to her right wrist on 10 August 2018. 2. The applicant developed a consequential condition of complex regional pain syndrome (CRPS) in the bilateral upper limbs. 3. The applicant is to file and serve with the Registry no later than seven days after publication of this decision, an Amended Application to Resolve a Dispute (ARD) removing all duplicated documents and ensuring that such documents are annexed in logical and proper chronological order in accordance with Procedural Direction 3. I further direct the Registry not to remit the matter to the President for assessment by a Medical Assessor until the Amended ARD is filed and served. 4. On receipt of the amended ARD, the matter is to be remitted to the President for referral to a Medical Assessor for the purposes of assessment as to whether the degree of whole person impairment is greater than 20% for the purposes of s 39 of the Workers Compensation Act1987 in respect of injury to the injuries arising from 10 August 2018 (inclusive of right wrist injury, scaring and CRPS of the left upper extremity and right upper extremity). The documents to be forwarded to the Medical Assessor are to include the Amended ARD and the Reply. 5. Liberty to apply if required for the purposes of any weekly payment dispute following assessment by the Medical Assessor. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Ms Ferguson (the applicant) suffered injuries in the course of her employment as a chef with Connemara Jack Pty Ltd (the respondent) on 10 August 2018. Liability was accepted by the respondent’s insurer for right De Quervain’s tenosynovitis and right carpal tunnel syndrome, although declined for the consequential conditions claimed of complex regional pain syndrome (CRPS) of the bilateral upper and lower extremities, left De Quervain’s tenosynovitis, cervical and lumbar spine.
The insurer ceased weekly compensation benefits on the expiry of 260 weeks and determined payments could not continue as the applicant did not have a whole person impairment of 20% or greater with reference to the Workers Compensation Act 1987 (the 1987 Act).
An Application to Resolve a Dispute (ARD) was filed claiming weekly compensation and medical expenses relating to a lumbar spinal procedure.
The matter underwent the usual case management pathway. At initial conference, the presiding Principal Member recorded the issues for determination at arbitration were to be the disputed consequential conditions and the treatment expenses associated with the costs of lumbar surgery with the balance of any entitlement to weekly compensation determined subsequently.
The matter was then constituted to me. The arbitration proceeded as scheduled. The applicant was represented by Mr McManamey of counsel instructed by Mr Ferraro. The respondent was represented Mr Davis of counsel instructed by Ms Casey. Mr Massih was the insurer’s representative.
Attempts to conciliate were met with impasse. Prior to the commencement of the arbitration Mr McManamey indicated the claims with respect to the lumbar spine were to be discontinued, thereby limiting the matter to weekly compensation payments which required as the first step, an assessment of liability of the claimed consequential condition of CRPS.
The following documents were fully considered in decision making;
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents (AALD) filed jointly by the parties in response to the Principal Members Direction (identifying all previous claims and their liability status).
No oral evidence was called.
Both counsel acknowledged the bulk of the documents before the Personal Injury Commission (Commission) were irrelevant to the issue for determination, a concession for which I am grateful. However, I hold a responsibility to impartially and objectively assess all of the material before me, an obligation in which I take no short cuts as I have a paramount obligation to the applicant to accurately assess her injuries, which I acknowledge have been life changing. Further, and importantly, such obligations are part and parcel of my obligations to the Commission and my office. It transpired that over 1,140 pages (approximately) of the documents attached to the ARD were duplicates. No rational explanation can be offered for this administrative misadventure which has drained the resources of the Commission and the parties generally. However, to ensure that the Medical Assessor is not burdened by what has been, I direct the applicant’s solicitors to remove all duplicated documents, and refile and serve the documents in logical and proper chronological order in accordance with Procedural Direction 3 within seven days of publication of this decision. I further direct the Registry not to make the referral to the President for assessment by a Medical Assessor until the Amended ARD is filed and served.
Evidence
Liability has been accepted for the right De Quervain’s tenosynovitis and right carpal tunnel syndrome. The insurer has paid for surgical procedures, rehabilitation and weekly benefits. As indicated above the only issue is whether the applicant has suffered a consequential condition of CRPS and if so, which extremities are affected. In the interests of brevity, I will confine my discernment to this issue. To make the complex simple, the applicant maintains that CRPS has affected the bilateral upper and lower extremities. The respondent originally maintains that the CRPS is unrelated to the original injury to the right wrist, but did concede at arbitration that this consequential condition possibly exists in the right upper limb.
Applicant’s evidence
Statement
In a statement dated 19 July 2024,[1] the applicant informs me of the repetitive nature of her work as head chef involving bending, chopping, cooking, cleaning, lifting along with the supervision of staff in shifts that extended up to 12 hours per day. A diagnosis of right De Quervain’s tenosynovitis and carpal tunnel syndrome had been made with a De Quervain’s tenosynovitis release undertaken in August 2018 and carpal tunnel release undertaken in September 2018.
[1] Folio 1-7 of the ARD.
Surgery failed to relieve symptoms. Pain specialist review resulted in a diagnosis of CRPS of the right arm treated initially with ganglion blocks and ultimately a spinal cord stimulator which failed to reduce the pain. Two pain management programs have been undertaken with no benefit and DBT[2] has commenced.
[2] Dialectical behavioural therapy.
The statement claims employment resulted in injuries of De Quervain’s tenosynovitis in the right wrist and hand, carpal tunnel syndrome in the right wrist, CRPS of both upper and lower extremities, scarring of the right hand/wrist and thumb, back pain, rotator cuff pathology in both shoulders and consequential injury to the cervical spine, gastro intestinal complaints, sleep disturbance and left hand symptoms. (I note that the rotator cuff pathology, cervical spine, sleep disturbance, gastro intestinal complaints and De Quervain’s tenosynovitis in the left hand do not form part of the dispute before me).
The statement identifies the impact on activities of daily living, both physically, mentally and socially, which I acknowledge are significant given the applicant is 33 years of age.
Medical evidence
As indicated above, the evidence attached to the ARD was not provided in a logical or chronological fashion and at best could be described as chaotic. I have attempted to discern the medical opinions in chronological fashion.
In support of this claim, the applicant qualified Dr Min Fee Lai, hand and plastic surgeon. The initial assessment was via telehealth. On 9 February 2021,[3] Dr Lai recorded that following the surgical procedures to the right hand, that the applicant started to experience episodes of sweating, hot and cold and colour changes in the right hand, ultimately being diagnosed as having CRPS by Professor Siddall whose management was short-lived on account of retirement. Dr Wallace (pain specialist) then assumed management confirming the diagnosis of CRPS and undertook treatment with limited results. A second opinion was sought from Professor Paul Wrigley (pain specialist) who confirmed right upper limb CRPS, recommended a pain management program and the insertion of a spinal cord stimulator for pain relief. Then, Dr Nathan Taylor, (pain specialist) agreed with Dr Wrigley’s management protocols. Progression of symptoms of CRPS were documented in the left upper extremity and bilateral lower extremities (October 2020).
[3] Folios 46-54 of the ARD.
Dr Lai diagnosed CRPS of both upper and lower extremities, considered that employment was the main contributing factor to the development of the condition (arising from surgical intervention to the right wrist), and offered a poor prognosis. A whole person impairment assessment was provided despite acknowledging that assessment of CRPS was compromised as sensory changes, temperature difference or sweatiness could not be adequately assessed via telehealth.
Dr Lai again reported following a video (telehealth assessment) on 22 September 2021.[4] Her findings largely remained unchanged and she reported that the CRPS condition was consequential to the wrist injury suffered on 10 August 2018.
[4] Folios 64 to 71 of the ARD.
Dr Choong, neurologist and neurophysiologist reported on 3 May 2019[5] and diagnosed CRPS of the right upper limb. His primary focus was the tremor which after investigation was determined to be non organic.
[5] Folio 543 of the ARD.
Professor Siddall, pain management specialist, on 26 June 2019[6] reported signs and symptoms consistent with a CRPS including changes in colour, temperature, hyperesthesia, swelling and tremor. His report referred to “pain in the right shoulder, arm and neck”. Examination of the lower limbs revealed reflexes were present and symmetrical. No specific mention of CRPS is recorded in the lower limbs.
[6] Folio 538 of the ARD.
Dr Laurent Wallace,[7] pain specialist, in his report dated 3 July 2019, diagnosed CRPS of the right hand and arm arising from work injury. MRI of the brain and cervical spine and nerve conduction studies showed no other reason for the tremor and he considered these symptoms were “probably related to the CRPS”.[8] Review with Dr Nathan Taylor was suggested.
[7] Folio 541 of the ARD.
[8] Folio 539 of the ARD.
Dr Nathan Taylor, pain specialist reported on 22 July 2019 and diagnosed CRPS of the right hand noting “colour change, brush allodynia and mild swelling and temperature asymmetry. He recorded a reduced range of motion in the shoulder”.[9] He reported symptoms arose following the work injury and subsequent surgery and recommended trial spinal cord stimulator.
[9] Folio 544 of the ARD.
On 13 September 2019,[10] A/Prof Wrigley, pain management specialist made a diagnosis of CRPS right arm.
[10] Folio 761 of the ARD.
Clinical notes dated 13 December 2019 confirm the onset of pain in the lower limbs and it was uncertain whether the symptoms were due to neuropathy from diabetes and it was considered if the MRI of the spine was normal, symptoms were likely due to CRPS.[11]
[11] Folio 131 of the ARD.
On 23 September 2020, following assessment, Dr Wallace diagnosed CRPS right upper limb with bilateral pain affecting both upper limbs “all the way up to the shoulders and neck”.
Mr Dane Sephton, podiatrist in his report dated 20 October 2020[12] performed a review as part of a multidisciplinary care plan wherein he conducted a neurological and vascular assessment. He recorded an excessive pronated gait with a right foot drop with ankle range of motion reduced and trigger points of the gastrocnemius muscles noted. Low risk diabetic foot status was diagnosed. No symptoms or findings were made with respect to CRPS.
[12] Folio 2373 of the ARD.
In his report dated 28 July 2021,[13] Dr Wallace recorded CRPS symptoms in the bilateral upper limbs but noted new complaints in the bilateral lower limbs with numbness and weakness. In relation to the lower limb weakness he suggested neurological/neurosurgeon review stating “it is possible it is related to the CRPS, but we need to exclude other pathology”.[14] No findings of examination are recorded as the assessment was conducted via telehealth at the height of the Pandemic.
[13] Folio 2732 of the ARD.
[14] Folio 2732 of the ARD.
On 5 August 2021, Dr Wallace referred the applicant to A/Prof Sheridan stating:
“she has a spinal cord stimulator in situ and is unable to get an MR. She has developed lower limb symptoms that are somewhat concerning. It may be related to CRPS, but we need to exclude other pathology.”[15]
[15] Folio 2930 of the ARD.
Dr Sheridan, neurosurgeon reported to Dr Wallace on 29 September 2021[16] confirming the CT scan showed no nerve disc protrusion or nerve compression in the lower back but marked inflammation in the sacro iliac joints which “I think fits well with her current symptoms. There is certainly nothing surgical here and I have sent her back to you to discuss managements of her sacro iliac joint pain”.
[16] Folio 2835 of the ARD.
On 2 February 2022, Dr Wallace reported that the bilateral lower limb pain and numbness and weakness resulted in multiple collapses and falls. He postulated that such symptoms were due to CRPS and reported (unedited):
“neurosurgical review by Dr Sheridan who doesn’t think there is any nerve compression in the lumbar spine that notes the significant sacroiliac joint findings on the bone scan and suggested that is the most likely cause” [sic][17]
[17] Folio 2829 of the ARD.
On 19 October 2022, Dr Wallace reported to Dr Pham. He recorded that the current pain issues were CRPS right upper limb that ended up affecting the bilateral upper limbs up to the shoulders and neck and also some right leg pain. On physical examination he recorded right L5 numbness and dysaesthesia and L2-L5 weakness on the left, most prominent at L5. (I note that he does not record any assessment or examination findings that are generally associated with the diagnosis of CRPS and only refers to ‘pain’ in the right leg and not the totality of signs and symptoms generally associated with CRPS). [18]
[18] Folio 2944 of the ARD.
CT scan findings of the lumbar spine dated 18 November 2022 record a clinical history of right sided leg pain and paresthesia in L2-L5 distribution. The findings were mild osteoarthritis at L5/S1 facets bilaterally and between L5 and S1 vertebra. At the L2/3 level a subtle broad based disc bulge is noted. At L3/4 mild broad based disc bulge causing mild canal stenosis noted with mild encroachment on the right L4 nerve root in the lateral recess. Abutment of the left L4 nerve root noted in the lateral recess. At L4/5 level a broad based posterior disc bulge causing moderate canal stenosis was identified. Impingement of the right L5 nerve root and encroachment of the left L5 nerve root noted in the lateral recess. At L5/S1 no significant disc bulge, canal stenosis or nerve root impingement was noted.[19]
[19] Folio 2942 of the ARD.
On 12 December 2022, A/Prof Mark Sheridan reported to Dr Pham[20] and recorded that since he last saw the applicant a year ago there has been an increase in back and leg symptoms with a significant limitation on activities of daily living. He noted pain specialist involvement and recorded that recent CT scan showed worsening disc bulging at the L4-5 with nerve compression which may be consistent with her deterioration. He organized a repeat bone scan and nerve conduction studies.
[20] Folio 2925 of the ARD.
On 11 January 2023, Dr Sheridan again reported to Dr Pham recording the findings of the above investigations. The nerve studies showed peripheral neuropathy as an after effect of her diabetes and chemotherapy as a child. He reported:
“I think she has a combination now of a complex regional pain syndrome in her legs as well as symptoms of lumbar stenosis at L4-5. I have organized to have bilateral CT guided transforaminal steroid injections at L4-5 and I will review her after these are done.”[21]
[21] Folio 2926 of the ARD.
On 31 March 2023, Dr Sheridan noted increased falls and instability and recommended L4/5 lumbar laminectomy and discectomy and nerve root compression stating “she has no pre existing or pre disposing health problems…she has tried all reasonable and necessary alternative treatments and surgery is the reasonable and necessary next step”.[22]
[22] Folio 2928 of the ARD.
In a certificate of capacity dated 6 April 2023, Dr Pham recorded:
“mobilizing with walking stick
Saw Dr Wallace yesterday
New issue
Incontinence is getting worse
Saw Dr Sheridan – steroid injections, needs surgery, XR and CT has been done. L4-5 lumbar laminectomy and discectomy and nerve root compression
Still numb in the left arm and from hips down
Still driving well but unable to tolerate driving longer than one hour.” [23]
[23] Folio 2614 of the ARD.
In a report dated 10 May 2023, Dr Wallace in a letter to Law Partners[24] diagnosed
De Quervain’s tenosynovitis, CRPS of the right upper limb entirely due to work related injury and subsequent surgeries required. He continued by stating:“your client has CRPS syndrome initially only affecting the right upper limb but now also affecting the lower limbs. This is not particularly rare in CRPS. The CRPS results from the upper limb injury….It is also likely to be the cause of the lower limb symptoms although I cannot be completely confident about this without further information.”
[24] Folio 3295 of the ARD.
Dr Ariff, general practitioner, in his response to a questionnaire dated 3 August 2023[25] diagnosed right De Quervain’s tenosynovitis and carpal tunnel syndrome, CRPS and depression, which he ‘linked’ to the work injury and which had been confirmed by
Dr Wallace, Dr Taylor and Professor Siddall. He reported CRPS had commenced in the right upper limb but had spread to the left upper and bilateral lower limbs.[25] Folio 101 to 104 of the ARD.
Dr Bodel, orthopeadic surgeon was qualified by the applicant and reported on
12 December 2023.[26] Unlike Dr Lai, this was a face to face assessment. Under current complaints, Dr Bodel takes a thorough inventory of symptoms mentioning leg pain and numbness and tingling but only signs and symptoms of CRPS in the right upper limb with swelling, colour changes, abnormal sweating patterns and pain which he considered was disproportionate to the underlying known pathology.[26] Folio 89 to 99 of the ARD.
Specifically, he records (unedited):
“Further investigations were done in September 2021 when she saw Professor Sheridan, spinal surgeon. This was about back pain and leg pain which came on gradually over a period of time without specific accident or injury. She states that Professor Sheridan explained to her that her symptoms fit with a diagnosis of CRPS however a CT and a bone scan were required to rule out nerve compression.”[27]
[27] Folio 91 of the ARD.
Dr Bodel did not examine the lower limbs but did diagnose De Quervain’s tenosynovitis and carpal tunnel syndrome in the right wrist, rotator cuff pathology in both shoulders and CRPS syndrome associated with her psychological issues (in the upper limbs). He concluded such diagnoses were related to her employment but determined that the lower back symptoms were unrelated to any workplace injury.
Dr Breit, orthopeadic surgeon was qualified by the respondent and reported on
3 February 2022.[28] He takes a consistent history of injury and diagnoses CRPS of the right upper extremity. He concluded relevantly (unedited):“Although CRPS is generally considered to be a condition only involving one side, a literature review resulted in one article from the year 2000 reviewing 27 cases of CRPS where they found four people with mirror image onset of symptoms in the opposite extremity. There has never to my knowledge been any report of spread from upper to lower extremities or vice versa. It is, therefore, possible that she has suffered CRPS on the left but there is inadequate information to provide a definitive opinion. I should however point out that with respect to CRPS in the Fifth Edition of the AMA Guides, Chapter 16, paragraph 16.5e at page 496 respect to chronic pain, they comment “Since a subjective complaint of pain is the hallmark of these conditions, and many of the associated physical signs and radiological findings can be the result of disuse, the differential diagnosis is extensive; it includes somatoform pain disorder, somatoform conversion disorder, factitious disorder and malingering. As far as the lower extremities are concerned there is no evidence that any of her complaints are in any way related to her right upper extremity injury.”[29]
[28] Folio 26 of the Reply.
[29] Folio 31 of the Reply.
In his supplementary report dated 31 March 2022, [30] Dr Breit reported (unedited):
“CRPS is a consequence of her right de Quervain’s disease leading to the problem in the right upper extremity and possibly the left as I have already indicated but there is no nexus with the lower extremities as I have indicated in my original report.”
[30] Folio 37 of the Reply.
Dr Casikar, neurosurgeon was qualified by the respondent and reported on
31 October 2023.[31] He takes a consistent history of injury and reports (unedited):“Ms Ferguson has CRPS. This is a well-established diagnosis. Her main CRPS was in the right hand and now she has developed in the left hand. This is unusual. However there are reports which indicate in the literature that CRPS can be transferred from one limb to an opposite limb. Therefore it is reasonable to accept that she has CRPS in the left upper limb too. However her symptoms in the lower limbs are difficult to explain. She seems to have very significant emotional issues.
There are some inconsistencies between the reported symptoms and objective pathology. While it is acceptable that CRPS can be transferred to the opposite upper limb I am unable to indicate that the CRPS has spread to her lower limbs as well. This is difficult to explain. Her back pain did not have a diagnosable condition.”
[31] Folio 50 of the Reply.
Submissions
When summarised, the applicant’s submissions were;
(a) there is no dispute the applicant has suffered an injury to the right wrist and has had surgery, liability has been accepted by the respondent, and
(b) the overwhelming medical evidence (including the respondent’s medical opinion) confirms the applicant suffers from CRPS to the upper limbs and also has symptoms of CRPS to the lower limbs and so I can be satisfied on the balance of probabilities that the consequential condition of CRPS arises from the wrist injury and has impacted the upper and lower limbs bilaterally.
When summarised, the respondent’s submissions were;
(a) liability has been accepted for the right wrist and it is conceded the bulk of the qualified medical evidence considers CRPS to be a consequential condition confined to the upper limbs but there is a dearth of evidence to reconcile symptoms spreading to the lower limbs. It is accepted that the applicant has symptoms in the lower limbs but the medical evidence fails to adequately reconcile such symptoms to CRPS or deal with other causes;
(b) the medical evidence upon which the applicant seeks to rely (Dr Lai) does not really offer a proper or scientific assessment of CRPS. The medical assessment was undertaken via telehealth which is not a forum conducive to the assessment of CRPS which requires visual inspection of a number of factors including but not limited to skin colour, tone, sweating and temperature;
(c) whilst the applicant has been assessed by a number of pain specialists, none of them conclusively have confirmed that CRPS is present in the lower limbs;
(d) the issue of causation must be determined on the facts in each case and the application of the common sense evaluation of the causal chain, and
(e) the applicant bears the onus of establishing on the balance of probabilities that the CRPS arises from the accepted right wrist injury and she has failed to do so.
In reply the applicant submitted;
(a) There is an overwhelming volume of evidence supporting a diagnosis of CRPS and the respondent cannot deny that such diagnosis is consequential to the right wrist injury. The chronology of events clearly demonstrate that symptoms have developed following right wrist surgery and have spread up the entire right arm and now is mirrored in the left arm. The fact that the specialists qualified on behalf of the respondent conclude that this is unusual, does not prevent a finding being made, as there is an unbroken causal connection in the development of symptoms affecting both the upper limbs and lower limbs.
APPLICATION OF THE LAW, FINDINGS AND REASONS
The applicant claims a consequential condition of CRPS affecting the bilateral upper and lower limbs as a result of the accepted injury to the right wrist. (Again, for the sake of abundant caution, I note that there have been many claims made on the respondent relating to various body parts, however these are not part of this discernment, the applicant requesting that I confine my review to CRPS).
The 1987 Act does not define a consequential condition. Authorities establish the following key principles (which by no means are exhaustive):
(a) the applicant bears the onus of establishing the existence of a consequential condition on the balance of probabilities[32] (Kumar);
[32] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
(b) each case must be determined on its own facts;
(c) it is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act[33] (Moon);
(d) in order to establish a condition, there is to be a ‘common sense evaluation’ of the causal chain, determined on the basis of the evidence, including expert opinions[34] (Kooragang);
(e) a finding of a consequential condition does not require the identification of pathology[35] (Kumar);
(f) a consequential condition occurs when an applicant experiences a new injury or condition due to the effects or consequences of their original work-related injury;
(g) reliable and contemporaneous medical evidence plays a significant role in establishing causation;
(h) there must be an unbroken chain of causation from the injury to the development of the consequential condition;
(i) it is not necessary the applicant prove she suffered a CRPS injury; all she needs to demonstrate is that the symptoms arise from the accepted right wrist injury;
(j) the test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury[36] (Sidiropoulos), and
(k) the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition[37] (Baker).
[33] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon).
[34] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
[35] Kumar v Royal Comfort Bedding [2012] NSWCCPD 8.
[36] Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648.
[37] As DP Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).
In this case, there was a heavy reliance by the applicant on Dr Wallace and specifically his opinion that the pain (presumably due to CRPS) had spread into the lower limbs . I have noted his opinion but find it is not persuasive. This is because his opinion is prefaced on the need to confirm and exclude other pathology.[38] As noted in his report dated 28 July 2021 he states “it is possible it is related to the CRPS, but we need to exclude other pathology”. Then in his letter to Dr Sheridan on 5 August 2021, he records “She has developed lower limb symptoms that are somewhat concerning. It may be related to CRPS, but we need to exclude other pathology”.[39] Finally on 10 May 2023, he records “The CRPS results from the upper limb injury….It is also likely to be the cause of the lower limb symptoms although I cannot be completely confident about this without further information”.[40]
[38] Folio 2930 of the ARD.
[39] Folio 2930 of the ARD.
[40] Folio 3295 of the ARD.
In short, Dr Wallace has not conclusively diagnosed symptoms in the lower limb as arising from CRPS. His reports are unclear about what further information is required and I note he has sought opinion from Dr Sheridan, neurosurgeon. This is where matters do become somewhat clearer.
Dr Sheridan recorded significant symptoms of weakness in the lower limbs resulting in falls. He ordered investigations and noted CT scan findings in November 2022 of worsening disc bulging at the L4-5 with nerve compression which may be consistent with her deterioration and recommended laminectomy at the L4/5 level with discectomy along with nerve root decompression given the pathology identified. He did report “I think she has a combination now of a complex regional pain syndrome in her legs as well as symptoms of her lumbar stenosis at L4-5. I have organized to have bilateral CT guided transforaminal steroid injections at L4-5 and I will review her after these are done”.[41] The report does not offer any explanation of how he made a diagnosis of CRPS in the legs nor its connection with the original injury but does satisfy me that the symptoms in the legs were due to the pathology identified on radiological imaging necessitating surgery.
[41] Folio 2926 of the ARD.
Dr Wallace despite seeking further information in an attempt to identify the source of pain in the lower limbs has not commented on the findings of Dr Sheridan. As a result, to date there is no conclusive medical opinion/diagnosis from a pain specialist that the symptoms in the lower limbs are CRPS arising from the original workplace injury to the wrist. This is significant as Dr Sheridan has identified a neurological cause for leg weakness and symptoms following investigations.
I note Dr Bodel, who following his assessment considered that the back pathology and complaints were unrelated to any workplace injury and on examination did not identify (or at least failed to report) on any CRPS symptoms in the lower limbs but did note the existence of CRPS in the upper limbs.
I acknowledge the clinical note dated 13 December 2019 by Dr Ariff confirming the onset of pain in the lower limbs and his uncertainty on whether the symptoms were due to neuropathy from diabetes and his statement “if the MRI of the spine was normal, symptoms were likely due to CRPS”. His report dated 3 August 2023 does not refer to the significant findings on the MRI but rather adopts the opinions of the pain specialists with regard to the diagnosis of CRPS but does not independently verify the areas concerned, despite Dr Wallace being uncertain about the presence of CRPS in the lower limbs.
The applicant carries the onus of establishing on the balance of probabilities that the consequential condition resulted from the workplace injury to the right wrist. The content of the standard of proof has been the subject of much judicial discussion and consideration but, for present purposes, it is sufficient to say I must be satisfied to a sense of actual persuasion or affirmative satisfaction that such claims have been made out.[42] (Nguyen). It is not necessary that I be satisfied to a degree of medical or scientific certainty but, on the other hand, it will not be sufficient if I am merely satisfied that it is possible that the condition is related to employment.
[42] Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Whilst I accept the applicant does have ‘pain’ in the lower limbs, there is a paucity of evidence reconciling such symptoms as being the result of CRPS, and if in fact due to CRPS its connection to the right wrist injury. Pathology assessed by Dr Sheridan was significant to result in surgical recommendation to address lower leg weakness which was said to arise from nerve root pathology. Whilst I appreciate that orthopeadic symptoms arising from lumbar spinal pathology resulting in radiation to the lower limbs and the symptoms of CRPS are vastly different in character, I am not satisfied that any of the medical reports before me demonstrate an unbroken chain from the injury to the right wrist to the development of symptoms in the lower limb on account of CRPS. Dr Lai’s opinion that the CRPS is a consequential condition in the lower limbs has not been made with reference to any physical examination (rather telehealth) and has been made in the absence of review of any investigations of the lumbar spine which ultimately resulted in surgical recommendation and intervention. Simply put, Dr Lai has not considered the other pathology and the complete symptom profile, and so I conclude her findings are based on an incomplete history.
Dr Wallace, pain specialist, postulated that CRPS was present in the lower limbs but on each occasion was careful to emphasize that further investigation and information was required to confirm that impression. His reports are silent on what information was required and he has not provided any comment on the impact of the radiological or neurological findings found in the spine on any assessment of the lower limbs and specifically the source of pain.
For these reasons, I find that on a commonsense basis (Kooragang), the applicant has not established that she has suffered a consequential condition of CRPS affecting her lower limbs.
However, I find that the applicant has established on the balance of probabilities, and with a degree of actual persuasion and affirmative satisfaction that she has suffered the consequential condition of CRPS which affects both upper limbs. I make this finding on the basis of consistent reporting of symptoms throughout her claim to her general practitioners, her three pain specialists and indeed all of the qualified specialists. Whilst I accept that
Dr Breit and Dr Casikar have considered it unusual that mirror symptoms may result in the contralateral limb, this cannot discount the contemporaneous complaints and documented history of symptoms in both limbs since at least 2019 and the contemporaneous records of three pain specialists. The condition has arisen as the result of the wrist surgery and so is truly consequential with reference to the authorities summarised in paragraph 49 above. The medical evidence is consistent and there were no other causes advanced for the symptoms in the upper limbs, which is in direct contrast to the alternate pathology identified in the lower limbs contributing to numbness weakness and ultimately requiring surgical intervention.For these reasons, I find the applicant suffers from the consequential condition of CRPS in both upper limbs resulting from her accepted workplace injury to the right wrist on
10 August 2018. The matter will now be referred to a Medical Assessor for an assessment as to the degree of whole permanent impairment arising from the consequential condition of CRPS affecting both upper limbs and the initial frank injury to the right wrist and scarring).
SUMMARY
For the reasons above, I make the findings and orders set out in page 1 of the Certificate of Determination.
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