Fiedler and Comcare
[2001] AATA 518
•12 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 518
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/876
GENERAL ADMINISTRATIVE DIVISION )
Re ERROL WILLIAM FIEDLER
Applicant
And COMCARE
Respondent
DECISION
Tribunal The Hon. C. R. Wright Q.C., Deputy President Brigadier I R W Brumfield (Part-time Member) Dr. J B Morley (Part-time Member)
Date12 June 2001
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter for re-determination by Comcare in accordance with the following directions: That the respondent pay to the applicant the reasonable cost of medical treatment obtained by the applicant in respect of the injury or disease referred to in para. 3 since 6 December 1996. That the respondent pay weekly compensation to the applicant in accordance with s.19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury or disease referred to in para. 3 since 6 December 1996. That the respondent pay to the applicant in respect of his permanent impairment, resulting from the chronic pain syndrome consequent upon his accepted bilateral carpal tunnel syndrome, 19% of the maximum amount provided for by s.13 and s.24(9) of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal further orders that the respondent pay the applicant's costs of the proceedings pursuant to s.67(9) of the Safety, Rehabilitation and Compensation Act 1988.
(Sgd) Hon. CR Wright QC
Deputy President
CATCHWORDS
COMPENSATION – whether the condition claimed was an extension of the original injury – whether injury to right hand was related to development of the condition in the left hand – application of Comcare Guide with respect to impairment of both hands.
Safety Rehabilitation and Compensation Act 1988 ss 16, 19, 20, 21, 21A, 22, 24, 27
Administrative Appeals Tribunal Act 1975 ss 43(1)
Lees v Comcare (1999) FCA 753; (1999) 29 AAR 350
Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797
Mullins and Comcare (1999) AATA 371
Toohey and Australian Postal Commission AAT Decision 13360 at para. 52
Peters and Australian Postal Corporation AAT Decision 9680
Holmes and Comcare (2001) AATA 290
Collins v Repatriation Commission (1994) 33 ALD 559
Morley and Comcare (1996) 40 ALD 725
Re Whelan and Department of Defence (1997) 47 ALD 383
REASONS FOR DECISION
12 June 2001 The Hon. C. R. Wright Q.C., Deputy President
Brigadier I R W Brumfield (Part-time Member) Dr. J B Morley (Part-time Member)
On 15 November 1994 the applicant who was employed as a porter for Qantas tripped over the draw bar of one of the baggage carts which he was moving and fell forward onto the ground. There was some dispute during the proceedings before the Tribunal as to whether or not he had landed heavily on his right hand only, or whether he landed with some weight also upon his left hand. We are satisfied having reviewed the whole of the evidence on this issue that the main weight of the fall was taken upon the right hand, but that his left hand was also jarred to some minor extent.
Within a very short time after the fall the applicant noticed that his right hand had swollen badly and turned blue. He had also developed paraesthesia in the right palm and middle three fingers of his right hand. He consulted his general practitioner, Dr. Roderick Macdonald, two days later. Dr. Macdonald found that his right hand was exquisitely tender, and suspecting that he may have fractured his scaphoid, he arranged for x-rays to be taken. However, the x-rays did not confirm his provisional diagnosis.
Dr. Macdonald referred the applicant to Dr. John Cameron for nerve conduction studies, which demonstrated significant median nerve disturbance at the right wrist.
On 18 November 1994, the applicant submitted a claim to Comcare for rehabilitation and compensation in respect of the injury. The respondent accepted liability.
Dr. Macdonald next referred the applicant to Dr. David Morgan, who, on 6 December 1994, performed an open carpal tunnel release with a limited taenosynovectomy as there was a considerable increase in the volume and thickness in the taenosynovium.
In his report to the applicant's solicitors dated 17 June 2000, (Exhibit A1) Dr. Macdonald set forth the following chronology of events which occurred after the carpal tunnel release:
"Post operatively, he had all kinds of problems. The major complication was severe pain and tenderness, and stiffness. At first, the maximum pain and tenderness were concentrated in the thumb, and would increase as the day went on. Paraesthesia developed in his medial three fingers, and there was the pain of spasm in his Flexor pollicis longus, and Flexor digitorum longus. The pain became excruciating, and as David Morgan was then away, I had him reviewed by his locum, Dr. Bill Donnelly. By then, Errol was requiring Panadeine Forte, and Rohypnol to help him get a bit of sleep. Sometimes the pain would crescendo to almost screaming levels. He had great difficulty forming a fist, and apposition was restricted to his index finger, and sometimes to the middle finger. Once in a while, he could almost touch his ring finger, but never any further.
Dr. Bill Donnelly realised, when he saw him, that he had developed Reflex Sympathetic Dystrophy (RSD), and he was admitted to the Belmont Hand Clinic. It was also realised that there was post operative fibrosis and scarring, which persists to this day.
At Belmont Hospital, his case was managed by Barbara Watson. Dr. Jim Bradley, anaesthetist, inserted an axillary catheter at PAH, and he was given a Marcaine infusion lasting four days, causing a complete motor and sensory block, with good relief.
He was also assessed by Dr. Stephen Coleman, after the block. He felt that the RSD was subsiding, and recommended gradual mobilisation with the provision of a wrist splint. He continued throughout all this, to have considerable trouble with spasm of the bellies of his forearm muscles. He also started to develop localised Ulnar nerve symptoms, and was still unable to turn on taps.
It was then proposed that he slowly start a return to work programme, but this was quickly abandoned with the return of severe pain. It was also realised that he was unable to drive with both hands on the wheel. As this was illegal, and he had to drive from his home in Burpengary to the Airport, it could not be organised. A Mary Hassell did his driving assessment, and it was she who declared the issue illegal. She said she would organise a knob to be attached to his steering wheel, but it took nearly a month to arrive. Around this time, grip strength was tested: 35 kg in left, and 4 kg in right.
Ordinary domestic chores started to become seriously impaired now. He tried to iron a shirt, but couldn't hold the iron, and dropped and broke it. He then found he had to get someone in to do his housework and lawn mowing.
As the weather started to get colder, he found the pain and discomfort increased. He started on a slow and gradual return to work, at first for only two hours a day, with no baggage handling, but driving only. He had a lot of support from his Supervisor, Dimitri, but was getting significant harassment from the OT, Chris Mitchell, now in Perth.
On July 14, Barbara Watson reassessed him. His grip strength had improved slightly to left 44 kg and right 16 kg. Tests for functional overlay and "cheating" showed that the test was pretty accurate, and that he was doing his best.
Importantly, she stated "At some 8 months following the original surgery, it would be expected that his improvements in function, range of movement and pain, would be fast levelling out. This is not to say that improvement will not continue slowly over a further 12 months". She also talked about "redevelopment" but it must be realised that Errol is also dyslexic, and is barely literate.
His symptoms continued to fluctuate over the next few months. During August, he was again reviewed by Dr. Morgan. He was quite concerned, and sent him to see Dr. Coleman again, "… because it is obvious that Mr. Fiedler has put in considerable efforts with his rehabilitation to little or no avail."
Dr. Coleman saw him on 18 Aug, and found that he definitely had a problem. He found significant trouble with the right median nerve, and that the left was going also. He recommended repeat open release on the right, and endoscopic release on the left. This was done on Saturday 2/9/95, and this time I was there to assist, and see for myself what was happening. The most outstanding feature, and we both commented on it, was that there was pretty horrible degeneration of the right Median nerve. The tendons were also mobilised in an attempt to improve function and range of movement. Post operatively, he needed Panadeine Forte and Fortral. In his letter to me, Dr. Coleman declared "Unfortunately I don't think there is a lot more that can be done, and any continuing pathology is probably due to scar within the scar itself."
On 2/10/95, his grip strengths were right, 18 kg and left 20 kg. He still had major problems with apposition, which I assessed as being due to weakness in his Lumbrical muscles. These muscles are supplied by the Median nerve. At this stage, having initially improved somewhat, he was still unable to open milk or soft drink bottles, and had difficulty cutting up meat.
He was returned to part time, restricted work late in September. Dr. Coleman had wanted him to go straight into full on work with maximum lifting, but Barbara Watson was adamant that that was not on. Nevertheless, he was having major problems in that he was still being made to lift weights well beyond the 15 kg limit set for him.
Unwisely, Dr. Coleman signed him back to full on work with no restrictions to start on 18 Oct. He still had a lifting limit of 15 kg imposed, but the average bag weight was 25 – 30 kg. For the first few days, he did mostly driving, with a little lifting of light bags for smaller planes, and his mates helped out with the heavier bags.
Two days later, he was put on to 737's, with lifting bags up to 35 kg, and from then his hards started to deteriorate badly, and he had to try lifting the bags with his forearms only, onto his thigh, the heaving with his back and legs. This caused some strain of his lower back.
…
Within a month of starting back to work, his hands were worse than before the second operation. He was also getting emotionally stressed from the harassment he was receiving from Work Cover, some OT's, and some Qantas Officials, and the constant confusion with multiple changeovers of case managers, and the contradictions from the many specialists he had been seeing.
One of the major problems I experienced was that other doctors he saw, would say one thing to me, and to him also, then put the exact opposite into their records.
Meanwhile, his hands were becoming progressively weaker and more painful. His grip became weaker, and much less able to be sustained. He found that he would have hold of something, and it would suddenly drop from his hands. His hands were becoming more swollen, hiding some of the wasting, yet he was suffering severe burning pain, specially at night. This pain was, and still does mostly affect the palms of his hands.
The records from March 96 till August 98 are missing. Also, the records of correspondence supplied to me cease at October 97. I still continue to see him. The burning pains in his hands continue to be severely distressing, and grossly limit him in his activities of daily living.
Following are lists of the things he absolutely can't do, things he does with difficulty, the level varying sometimes from day to day, and the things he can do without difficulty. I would point out that Errol had been a very keen fisherman and liked nothing better on his days off than to go out in his 22 foot boat for a fishing trip. He was so keen that he used to make all his own lures, a task that requires considerable fine motor skills and manual dexterity. I have seen the huge box of lures that he made, and they are of very high professional quality.1 Things he now cannot do:
1. Make his lures.
2. Take his boat out.
3. Hold any but the smallest rod.
4. Fillet fish.
5. Use household tools such as hammer, pliers, screwdriver etc.
6. Change a wheel on a car.
7. Drive more than 30 km even with Automatic, and power steering.
8. Mow the law.
9. Use a vacuum cleaner.
10. Have sex, unless he stays on the bottom.
11. Hand relief with masturbation.
12. Open bottles.
13. Sustain a grip more than one or two minutes, max.
14. Hold wrists in flexion.
15.Sleep through the night without waking several times with pain and numbness.
16.Lift more than 10 kg – things just fall out of his hands.
17.Dig. His little dog died the other day, and he couldn't every bury him.
18.He can't go out anywhere without a mobile phone in case he or the car breaks down, as he is useless trying to fix anything now.
19.Oppose his thumb to his ring and little fingers.
Things he can do but with significant difficulty:
1. Reverse a car.
2.Hold a pen.
3.Hold a phone.
4.Wipe his backside.
5.Any fine work, anything requiring fine motor skills.
6.Lifting less than 10 kg and sustaining it for more than 30 seconds.
7.Cooking.
8.Washing dishes.
9. Handing out laundry.
10.Exposure to cold, eg getting something out of the freezer.
11.Exposure to heat, though this is not as bad as cold.
12.Scale fish.
Things he can do without difficulty:
1. Collect his washing and get the washing machine started.
2.Make normal hand gestures while talking.
Thus it can be seen that his activities of daily living are grossly limited, besides being in constant pain. He has been subjected to a great deal of pain and suffering.
Very importantly, this accident occurred only shortly before he would have completed his 25 years of service with Qantas, and so he has missed out on all the benefits accrued by that length of service.
His earning potential has been destroyed, and he has gone from earning $1,260 per week to $350 per fortnight, i.e. $175 per week. I believe that at nearly six years since the accident, the possibility of further improvement is now remote. Yesterday, when I was seeing him, he put his hands on my forearm, and the heat emanating from them was intense, while the rest of his skin was cool. When he gets this kind of heat reaction, by the next day, there is a burn type reaction in his web spaces. I have regularly checked his hands, and there have not been any calluses or work stains or hardness for a very long time. The skin of his hands is soft, but highly hyperaesthetic."
Without necessarily subscribing to all of Dr. Macdonald's criticisms of the applicant's treatment by other professionals we accept this history as being substantially accurate.
On 10 April 1996, the applicant lodged a claim for permanent impairment and non-economic loss with Comcare. On 6 December 1996 Comcare made a decision, not only to repudiate liability for payment of compensation for permanent impairment, but also to cease regular "top up" payments which were being made to compensate the applicant for the loss of overtime work which, but for his injuries, would have been available to him.
On 27 March 1997, the applicant requested Comcare to reconsider its decision of 6 December 1996, but on 31 July 1997, Comcare advised the applicant that having reconsidered the matter the original determination of 6 December 1996 was affirmed.
On 2 September 1997, the applicant lodged an appeal to this Tribunal.
It is claimed on behalf of the applicant that he is entitled to compensation in respect of medical expenses under s.16 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") and to compensation in respect of incapacity pursuant to ss.19, 20, 21, 21A or 22 of the Act, as well as compensation for permanent incapacity under s.24.
The hearing of the application to review took place before the Tribunal at Brisbane on 3 and 4 April 2001.
The respondent argued that on 6 December 1996 the Comcare delegate had determined that liability for the applicant's "bilateral carpal tunnel syndrome" no longer existed, and that there was no liability for permanent impairment pursuant to ss.24 and 27 of the Act and, relying on the decision of the Full Federal Court in Lees v Comcare (1999) FCA 753 and 1999 29 AAR 350, it was submitted that the Tribunal's role in this matter is restricted to a review of that specific decision pursuant to the powers invested in the AAT under s.43(1) of the Administrative Appeals Tribunal Act 1975.
It was submitted by the respondent that the decision made by Comcare was to deny ongoing liability for bilateral carpal tunnel syndrome, and that, given the medical evidence and the concessions made by the applicant's counsel in opening his case, that decision was clearly correct. The respondent submitted that it was not competent for the applicant to claim that there is an ongoing liability for an unspecified injury or disease as to do so, is to embark upon a new question which has not been adverted to or considered by Comcare in the review process.
As already mentioned there was some dispute as to whether or not the symptoms experienced by the applicant in his left hand and arm were a direct result of his fall at work on 15 November 1994. Counsel for the applicant argued that even if the claimed impairment to his client's left hand is not directly attributable to the fall, his client is entitled to compensation because the injury to the left upper limb resulted from overuse of that limb following his return to work, subsequent to the initial carpal tunnel release operation carried out on right wrist. There is much to be said for this view, particularly as Comcare has accepted liability for bilateral carpal tunnel syndrome. The Tribunal accepts that there was some minor degree of injury to the left hand during the fall on 15 November 1994 but initially it was asymptomatic. Nonetheless the Tribunal does not accept that Comcare can avoid liability for any work caused impairment of either or both upper limbs. Our reasons for this conclusion will appear from a review of the medical evidence later in this decision. The Tribunal accepts the applicant's submission that it is immaterial whether or not that impairment is described as ongoing bilateral carpal tunnel syndrome or the ongoing effect of that condition complicated by the consequences of surgical operations leading to a chronic or regional pain syndrome. It should be noted that the word "syndrome" means a group of symptoms and signs which when considered together are known or presumed to characterise a disease or lesion. The word "syndrome" does not of itself describe in definitive terms the disease or lesion and is used medically in substitution for a more accurate diagnostic term, particularly in cases where the specific mechanisms producing a recognised cluster of symptoms are difficult to demonstrate physiologically, but are inferred to be causative of the condition from empirical observation and experience.
The Tribunal takes the view that the approach taken in Musumeci and Department of Health (Northern Territory) 1990, 19 ALD 797 and Mullins and Comcare 1999, AATA 371, is supportive of this view. In Musumeci's case, Deputy President Todd pointed out that where it was accepted that pain was present, it was unnecessary to put a name to a compensable disease: He said:
"… while inability to make a precise and incontrovertible diagnosis may well make more difficult a finding of a link between employment and a claimed incapacity, that fact of itself does not militate against a finding for an employee under the legislation here applicable where the proofs are otherwise adequate."
Deputy President Todd then went on to discuss the provisions of the Compensation (Commonwealth Government Employees) Act 1971 and concluded:
"The pain suffered by the applicant is in the circumstances attested to by the evidence an "ailment", and is in consequence compensable. (Being a disease within the meaning of the Act)."
He continued:
"To say that "pain of itself is compensable" would indeed be too broad a statement. What I am saying is that proven pain may in some circumstances fall within the statutory definition of disease notwithstanding that medical science is unable to agree on the label that is to be attached to the condition that gives rise to the production of non-transient symptoms that constitute the pain…
The problem here in any event is not one of initial liability. It is simply a question of whether effects of the original injury have been somehow exhausted so that the applicant's continuing pain must be found to be no longer attributable thereto, but rather to some other source. There was in my opinion no evidence in support of such a finding. The matter was clouded by the fact that the medical and para-medical evidence, while it was entirely supportive of the finding of the existence of pain, has some difficulty in establishing the precise physiological basis of that pain. I have already dealt with this problem."
Similar comments would be appropriate in the present circumstances. The deteriorating condition of the applicant's hands is in our opinion referrable to the work-related injuries and stressors which were originally and conveniently described as "bilateral carpal tunnel syndrome".
The applicant's present condition and his condition at the time of the Comcare review is directly and immediately referrable to that syndrome, although it may now more accurately be described as a "chronic pain syndrome of neural origin".
There is no evidence before the Tribunal which would suggest any intervening non-work-related cause which the Tribunal should or could regard as being responsible for the applicant's pain.
The Tribunal is therefore of the view that the respondent's submissions as to the limited nature of the Tribunal's capacity to review the Comcare decision of 6 December 1996 is not sustainable.
The applicant himself gave evidence and, after detailing the history of his original injuries and subsequent medical treatment, he described his current problems in the following terms:
"I have constant aching in both hands. It is like a reasonable toothache. I have troubles around the house. I still try and make fishing lures. Sometimes the pain in my hands is worse than others. I have trouble sleeping, the hands ache. I wake about three times per night, because of the pain in the hands. I have numbness in the two centre fingers of each hand. Both hands are now back to the state in which they were before the second operation. I am right handed, I lose my grip very easily because of pain and weakness. The pain radiates to the inner side of the elbow on both arms. I try to mow the lawn, but the vibrations of the lawn mower drive me silly. My hands pulsate all the time. Since Sue (Susan Eastley) has been gone, it is hard to hang out the washing on the line. My hands swell if water is cold when I am hosing the garden. Hot water also gives problems, burning and aching problems. I take Panadeine Forte, but if I take too much it binds me up and I try not to take it. Dr. Read has started me on Epilim a new drug which has helped slow my heart rate."
The applicant claimed that he enjoyed working and that he had intended to continue working at Qantas until he was 65. He is now aged 57 and is receipt of a disability pension. In cross-examination he said that since 1997 his hands had become worse, the pain was now more pronounced, and he had the same symptoms of aching and cramping as before the second operation. He said that he has tried for other employment since leaving Qantas, but has been unsuccessful. He said that his right hand is worse than his left and he gets pain in the wrists if he is making fishing lures and the wrists also swell. If using a table knife he can sometimes develop a problem in the right hand. It feels as though a nerve has been hit and as a consequence he may relinquish his grip.
The evidence of the applicant and lay witnesses called on his behalf, Susan Eastley, John Joosten and Conley Milonas substantially confirmed the level of disability described by Dr. Macdonald in his report.
We turn therefore to the medical evidence given before the Tribunal. The medical material available to the Tribunal consisted of medical reports, letters and clinical notes from:
Dr. John Cameron, neurologist, of 30 November 1994 (T documents folio 103), 14 March 1995 (T documents folios 101-102) and 7 July 1999 (Exhibit R1, pages 14-23).
Dr. Michael Coroneos, neurosurgeon, clinical notes of initial consultation of 17 September 1996 (Exhibit A12) and medical reports of same date (T documents folios 105-113), 15 November 1966 (T documents folio 116), 6 December 1996 (T documents folio 117), 29 May 1997 (T documents 128-130), 10 March 1999 (Exhibit R1 pages 1-11) and 7 May 1999 (Exhibit R1 pages 12-13).
Dr. Stephen Coleman, orthopaedic surgeon of 14 September 1995 (T documents folios 56-57), 20 September 1995 (T documents folio 58), 19 December 1955 (T documents folios 80-81), 20 March 1996 (T documents folio 88) and undated (received by Comcare 27 May 1997) (T documents folio 127).
Dr. Nicholas Daunt, radiologist of 17 September 1996 (T documents folio 104).
Dr. Phillip Duke, orthopaedic surgeon, clinical notes of consultations of 27 August 1997 and 26 October 1999 (Exhibit R2) and medical reports of 30 January 2001 (Exhibit R1 pages 24-27) and 8 February 2001 (Exhibit R1 pages 29-29).
Dr. Kay Lane, pain management consultant, of 24 November 1997 (Exhibit A8), 15 December 1997 (Exhibit A7), 2 February 1998 (Exhibit A9), 16 March 1998 (Exhibit A10) and 21 April 1998 (Exhibit A11).
Dr. Ian Low, occupational physician and Mr. Allan Holz, rehabilitation counsellor of 12 June 1997 (T documents folios 131-135).
Dr. Roderick Macdonald, general practitioner, of 21 June 1995 (T documents folios 41-46), 2 December 1995 (T documents folio 75) 11 January 1996 (T documents folios 89-96) and 17 June 2000 (Exhibit A1).
Dr. Breck McKay, general practitioner of 12 December 1996 (T documents folios 123).
Associate Professor David Morgan, orthopaedic surgeon, of 20 March 1995 (T documents folios 50-51).
Dr. Stephen Read, neurologist, of 12 July 2000 (Exhibit A2) and 5 December 2000 (Exhibit A3).
Dr. Prashant Somaia, radiologist, 3 January 1996 (T documents folio 122).
Dr. Don Todman, neurologist of 18 September 1996 (T documents folio 100).
Dr. Daryl Wall, surgeon of 15 January 1997 (T documents folio 125).
In addition, the following appeared as medical witnesses before the Tribunal during the hearing.
· Dr. John Cameron (in person)
· Dr. Michael Coroneos (in person)
· Dr. Phillip Duke (by telephone)
· Dr. Stephen Read (by telephone)
· Dr. Roderick Macdonald (in person)
The Tribunal addressed the medical issues in two main parts:
The Relationship of the Applicant's Pain in Both Hands to his Original Injury.
(a) His original injury.
There is no disagreement among the medical witnesses that the applicant's original injury consisted of compression of his median nerve in the carpal tunnel of his right wrist, as a complication of his documented fall at work on 15 November 1994. The Tribunal accepts Dr. Cameron's interpretation that the applicant had an underlying predisposition to this condition, which became symptomatic as a result of the accident. The diagnosis was confirmed by Dr. Cameron's nerve conduction studies on 30 November 1994, in conjunction with a consultation, by referral from the applicant's general practitioner Dr. Macdonald. The applicant underwent an open carpal tunnel decompression surgical procedure by Associate Professor David Morgan on 6 December (Exhibit A1, p.1).
However his right hand pain continued despite physiotherapy and non-steroidal anti-inflammatory medication (T documents folio 22). Associate Professor Morgan reviewed him on 6 February, and is said to have diagnosed reflex sympathetic dystrophy (RSD), (T documents folio 42), and therefore referred him to the Belmont Private Hospital Hand Rehabilitation Unit where he was admitted on 14 February 1995. Although he was assessed as not having a "full house" of signs of RSD, he was referred to anaesthetist Dr. Jim Bradley at Princess Alexandra Hospital, who inserted a right axillary catheter that afternoon, to effect a "complete motor and sensory block". Through this, over the next four days, a gradually diminishing dose of the pain relieving agent Marcaine was infused, with significant lessening of his pain. He was seen by Dr. Stephen Coleman on 19 February and it is recorded that he felt that there were no significant signs of RSD, and he advised "graded mobilisation". At further review another five days later further relative improvement in the applicant's complaints was noted. (T documents folios 23-24).
By 6 March his "hand use was improving" and his "pain was tolerable apart from the increase in symptoms, apparently related to the ulnar nerve". Accordingly Associate Professor Morgan requested further nerve conduction studies. (T documents folio 35). These were performed by Dr. Cameron on 13 March which showed "significant improvement in median nerve function across the carpal tunnel" compared to his pre-operative findings on 30 November 1994; and his ulnar nerve studies at the right elbow and wrist were "within normal limits". (T documents folios 101-102).
His course also was complicated by his developing a small stitch abscess in his surgical scar, for which Dr. Macdonald removed the "foreign body" on 27 April. (T documents folio 43).
(b) His return to work.Although plans for him to return to work were first considered in March (T documents folio 37), these were delayed to finalise arrangements by which he could drive to work using his left hand only. For this his general practitioner Dr. Macdonald arranged for the applicant to have the appropriate attachment fitted to his car's steering wheel, as well as obtaining permission from Sergeant Greg Ward of the Traffic Branch of the Queensland Police (T documents folio 43). He resumed work on 1 May (T documents folio 44), and in his evidence the applicant stated that this initially was limited to two hours each alternate day, with a graduated increase in his working hours; by 21 June he was working four hours a day, up to eight days straight, then with four off (T documents folio 44). His duties were limited to tarmac driving, using his left hand only; and his lifting of luggage was restricted to his left hand only, and kept to a minimum. Despite these limitations the applicant's evidence was that he suffered worsening pain and numbness in his left hand, and his right hand complaints continued. Dr. Macdonald recorded instances of the applicant's frustration and depression with his slow progress, and his role in counselling him accordingly (T documents folios, 41, 42, 43, 45 and 46).
(c) The development of his left hand complaints
In his evidence the applicant asserted that he also suffered similar left hand complaints from the time of his original injury. However, during his oral evidence, Dr. Macdonald confirmed that, although his file on the applicant commences in 1987, and he was seeing the applicant as often as 15 times a month when his symptoms were "at their worst", his first record of him suffering complaints in his left hand appears on 18 August 1995. In the report of Hand Therapist Co-ordinator, Ms Barbara Watson of the Belmont Private Hospital Hand Unit of 14 July 1995 there is no reference to the applicant suffering left hand complaints. (T documents folios 48 and 49). Therefore the Tribunal accepts that the applicant's complaints in his left hand began on or about August 1995.
Accordingly he was referred by Associate Professor Morgan to Dr. Coleman who saw him on 17 August (T documents folio 91). Although there is no copy of the report available, at Dr. Coleman's request Dr. Cameron repeated his nerve conduction studies on 22 August (Exhibit R1 p.14), which apparently showed "continuing mild carpal tunnel syndrome on both wrists" (T documents folio 56), for which he recommended a right open carpal tunnel release and a left endoscopic release (T documents folio 57). Dr. Coleman performed these on 2 September, assisted by Dr. Macdonald; Dr. Coleman reported: "His right median nerve did appear to have a scar about it, and a neurolysis (release of the nerve) has been done … Unfortunately I don't think there is a lot more that can be done, and any continuing pathology is probably due to scar within scar itself". (T documents folio 58). Dr. Macdonald referred to there being "pretty horrible degeneration" of the median nerve (Exhibit R1), and that the nerve was "badly damaged" (T documents folio 91); and in his oral evidence to the Tribunal he stated that the applicant's right median nerve was "significantly wasted", and had to be "dissected away from scar tissue". No operative findings were available to the Tribunal for the endoscopic procedure on the applicant's left wrist.
(d) THE RELATIONSHIP OF HIS LEFT HAND COMPLAINTS TO HIS ORIGINAL INJURY.The applicant has stated in his evidence that his use of his left hand, both at work, and in his activities of daily living, because of the persistence of his right hand complaints, induced his left hand symptoms.
On 18 September 1995 a Rehabilitation Assessment Report from Occupational Therapist, Sven Roehrs, has recorded that the applicant had been: "Of [sic] work since 30 August 1995 prior to surgery 2 September 1995. Prior to surgery he was performing alternate duties delivering baggage, however reports frequently having to load and unload the vehicle using his left hand only". (T documents folio 59). Later in the same document it also is recorded that discussions were held with the applicant's work supervisor, Mr. Dimitri Politis, about "concerns" about the applicant being unable to perform "normal driving on reduced hours due to availability of equipment", and the "consequences of not being able to perform voluntary overtime in baggage handling" (T documents folio 61). On 2 October Dr. Macdonald's progress notes have recorded "a lot of the recurrent problems are due to his being made to lift bags of greater weight than recommended" (T documents folio 92).
There were varying medical opinions regarding whether the applicant's enforced increased used of his left hand had caused his left carpal tunnel syndrome. These can be summarised as follows:
In his report (Exhibit R1, p.20) Dr. Cameron has stated:
"If in fact he only fell on his right hand, the subsequent development of a left carpal tunnel syndrome is unrelated to the fall."
However, in his oral evidence to the Tribunal, he said that, whereas lifting with his left hand should not induce a carpal tunnel syndrome, repeated wrist flexion could do so, if an individual had an underlying predisposition to the condition; and the Tribunal has noted that in his report he has stated:
"It is most probable Mr. Fiedler had low grade sub clinical median nerve entrapment at both wrists prior to the fall in November 1994." (p.19); and
"There was a pre-existing 'disease' existing in both hands prior to this injury…". (p.21)
Dr. Coroneos did not comment on this point in his reports, but in his oral evidence stated that wrist flexion could "precipitate symptoms of carpal tunnel syndrome", making a clear distinction from this causing it.
Dr. Coleman stated:
"I feel that Mr. Fiedler has bilateral carpal tunnel syndrome. This may have been aggravated by a fall, but is more likely caused by the underlying work activity and lifting in his job". (T documents p.56)
Drs. Duke and Lane, Dr. Low and Mr. Holz, Drs. McKay and Macdonald, Read and Wall, and Associate Professor Morgan offered no opinion on this question.
Therefore, on the basis of the opinions expressed, the Tribunal finds that the applicant, as described by Dr. Cameron, had an underlying predisposition to the condition in both wrists, and that his left hand carpal tunnel syndrome complaints were precipitated by his enforced preferential use of his left hand, particularly the action of wrist flexion, both at work, and in his other activities of daily living, following his first open carpal tunnel decompression surgery on 6 December 1994.
THE NATURE OF THE APPLICANT'S PRESENT COMPLAINTS OF PAIN IN HIS HANDS.
There were directly conflicting medical opinions regarding the extent to which the applicant is presently suffering pain in both hands, which he is asserting is preventing him from working, and, if so, the extent to which that pain is derived from his bilateral carpal tunnel syndromes.
Drs. Coroneos and Duke, both in their written reports and during their oral evidence, were firmly of the view that he has considerably less pain than he reports. Their view was that the use of his hands is limited to a substantially lesser degree than he is claiming. Dr. Cameron also expressed doubts. On the other hand, Drs. Lane, Macdonald and Read accepted the applicant's account of his complaints, and the contention that they were a result of his carpal tunnel syndromes. Their respective comments were as follows:
Dr. Cameron wrote in his report:
"Overall it is most probable he does have a low grade discomfort still persisting in both hands as a consequence of chronic median nerve disturbance at both wrists" (Exhibit R, p.19).
During his oral evidence Dr. Cameron described his assessment of the applicant's pain as "not severe". In remarking on his recorded observations when examining the applicant that he "… was not sensitive over the median … nerves at either wrist …" (p.18) he stated that it is unusual for a patient who suffers chronic pain to tolerate being touched in the painful region. In cross-examination he added that "there is no test on the planet" that can exclude the presence of pain, pain being a subjective experience. He agreed that, although pain does not cause weakness, it interferes with muscle use because of decreased effort, and pain also may lead to reduced dexterity. In response to questions from the Deputy President he stated that his examination findings were "incompatible" with the applicant's description of his complaints, and although he "accepted what he said", he had "found less than he had said". He also advised the Tribunal that about 5% of subjects suffer "failed surgery" for carpal tunnel syndrome, in the from of persistent pain, and the explanation for this is not known.
Dr. Coroneos reported:
"I can find no evidence of any significant abnormality, either clinically, radiographically, electrophysiologically or on 3-Phase nuclear bone examination" (T documents folio 112):
also
"I feel that he may experience wrist pain as he states with repeated resting or bumping of the wrist (over the carpal tunnel … I do not accept all of the symptoms, complaints or restrictions described by Mr. Fiedler as having any clinical or investigation basis … there is no tendon or muscle abnormality clinically or on the soft tissue phase of the nuclear scan, and there is no neurological abnormality clinically or on detailed electrophysiological examination of the nerves of the hand and no wrist or hand joint abnormality …" (T documents folio 117).
He has repeated comments in a similar vein in his later report (Exhibit R1, pages 5, 6, and 12). He said that he found "moderate callus formation" on the applicant's hands at his consultation on 17 September 1996 (T documents folio 108) to which he referred in his later report of 29 May 1997 (T documents folio 128). During his oral evidence he maintained these views. The Tribunal has noted that copies in evidence of his clinical notes that he wrote during his consultation with the applicant showed no record of "calluses" on his hands, but there is a sketch showing a patch of "induration" (i.e. thickening) on his left palm, and of "colour change – purple, hot, stinging, itchy" on his right palm (Exhibit A12).
From the applicant's two consultations with him on 27 August 1997 and 26 October 1999, Dr. Duke remarked that there was "not much wrong" with the applicant's wrists or hands (Exhibit R .p.25), but added that he "… has some ongoing pain in his hand …", and that he "… suffers from very mild residual carpal tunnel type symptoms and other pains that don't really fit with any significant wrist condition" (p.26). In his oral evidence he stated that his impression was that the applicant was using his hands more than he was acknowledging. His handwritten clinical notes, also in evidence, of both of his examinations of the applicant show no reference to "calluses" (Exhibit R2). During cross-examination he agreed that "medical science will never reach the point of totally explaining pain".
The Tribunal had reports of five examinations of the applicant by Dr. Lane of 24 November (Exhibit A8) and 15 December 1997 (Exhibit A7) and 2 February (Exhibit A9) 16 March (Exhibit A10) and 21 April 1998 (Exhibit A11), and she wrote on 24 November 1997: "I doubt that he has reflex sympathetic dystrophy but he certainly has a neuralgic type pain" (Exhibit A8).
Dr. Macdonald has reported on 11 January 1996:
"There are still colour and temperature changes. I photographed his hands, demonstrating this, on 8/1/96 … He has also subsequently developed a dyshydrotic dermatitis in his hands …" (T documents folio 94);
and on 17 June 2000:
"I have regularly checked his hands, and there have not been any calluses or work stains or hardness for a very long time". (Exhibit A1, p.4).
During his oral evidence Dr. Macdonald opined from his long experience and numerous observations of the applicant that his pain was "genuinely felt", stating that he had watched him at home during house calls, and had observed the patient frequently showing involuntary facial expressions of pain, he had seen him trying to mow the lawn, and wash up, and prepare a meal, and had seen him drop articles from his hands, and to shake his hands; he often held his hands "protectively". His view was that the thickening of the skin of his hands was due to him having done manual work ever since he left school at the age of 12 years. He conceded that the applicant previously had calluses on his hands before his operations, but they had since gone, although the thickening of his skin was still present. During cross-examination he asserted that he knew the applicant with the most "clinical accuracy", having been his patient since 1987, and at the worst period of his history he was seeing the applicant as many as 15 times a month; this contrasted with the specialist medical practitioners having seen him only occasionally. He disagreed that he had "lost his objectivity". He considered the applicant genuine, pointing out his previously impeccable work record, and that by his eventual loss of his job he had incurred substantial loss of financial benefits to which he would have been entitled had he kept working at Qantas until retirement age. His diagnosis was that the applicant had originally developed a right carpal tunnel syndrome from his work injury, which was decompressed, but he then had developed a reflex sympathetic dystrophy. His right carpal tunnel syndrome then recurred, and become accompanied by a left carpal tunnel syndrome. He now was suffering residual neuralgic pain, as a form of chronic pain syndrome. He disagreed with other opinions that the applicant's hands now had recovered, and that his present complaints were not related to his original injury.
Dr. Read had seen the applicant on 12 July, 23 August and 25 October 2000, and was satisfied that his diagnosis was "neuralgic pain" affecting both hands, but worse on the right, of unknown cause. In his oral evidence he informed the Tribunal that it was "difficult to say" how the pain was produced after nerves had been damaged, and the present state of medical scientific knowledge has not yet provided explanations, and there were no confirmatory diagnostic tests yet available. However the features of the applicant's pain were those of "neural (i.e. nerve derived) mechanisms" triggering his pain. He said that it was "conceivable" that the applicant's complaints were not related to his original injury, but he was impressed by the temporal relationship, by which he felt that the link appeared to be obvious.
During the applicant's re-examination by his counsel, Mr. Harding, he was granted permission to approach the Bench, in order that the Tribunal members could examine his hands for themselves. They noted thickening and reddening of the skin, which was soft; and there were no calluses. It is noteworthy that several of the medical witnesses appeared to base their opinions, at least in part, upon the implied proposition that when they examined him the applicant's hands evidenced the fact that he had been performing substantial manual work inconsistent with the level of disability of which he complained. However as the applicant's counsel correctly pointed out that when Dr. Duke mentioned in his first report of 27 August 1997 that the applicant's fingers "all demonstrate evidence of use", the applicant was in fact working. Furthermore, Dr. Duke's notes do not disclose what level of use the applicant was asserting at the time or indeed, whether that issue ever arose. It is also noteworthy that the applicant does not claim that he does not use hands at all. What he complains of is pain, discomfort and lack of grip and when he does so. We also take the view that the applicant's counsel's criticism of the conclusions of Dr. Coroneos contained in paras. 41 - 46 of his written submissions are well founded.
In resolving the conflicting medical opinions, the Tribunal has taken account of the following matters:
(a)All medical witnesses were agreed that there is no objective test for determining whether, and to what extent, an individual is suffering pain.
(b)The Tribunal is persuaded by Dr. Macdonald's argument, that he has a much closer personal and professional knowledge of the applicant than the specialists who have examined him, and accepts his opinion that the applicant is a credible witness. This accords with the impression of the members of the Tribunal on the applicant's demeanour during his evidence. It also accepts Dr. Macdonald's interpretation of the skin changes in the applicant's hands, the members having seen these for themselves.
(c)Several doctors also made the point that the present state of medical knowledge about the development and persistence of chronic pain is meagre. In this respect, to a large extent, it is a condition of "unknown aetiology". The Tribunal takes the view that, when a medical condition is of unknown aetiology, it must avoid the error of intellectual arrogance, of assuming that that condition does not have a relationship to the postulated cause. The Tribunal regards as ancillary to this the observation provided by Dr. Cameron during his oral evidence that about 5% of subjects suffer "failed surgery" for carpal tunnel syndrome, for reasons unknown.
(d)Dr. Coleman found that the applicant's right median nerve, at the second open carpal tunnel release procedure on 2 September 1995, "did appear to have a scar about it … and any continuing pathology is probably due to scar within the (nerve) scar itself", and Dr. Macdonald, assisting at the operation, said that the nerve was "damaged", and "wasted", and had to be "dissected away from scar tissue". Thus his right median nerve in the applicant's wrist has been seen, by direct vision, by two experienced medical practitioners on the one occasion, to have remained scarred or injured to some degree nine months following his first carpal tunnel decompression. This also would appear to be consistent with Dr. Cameron's findings on his later nerve conduction studies' re-examination on 2 July 1999 (i.e. nearly four years after both carpal tunnels had been decompressed) of "very mild median disturbances at both wrists", with the implication that the left median nerve may also have been left post-surgically in a similar state.
(e)Such residual post-surgical injury to the applicant's median nerves, although presumably relatively mild, conceivably is the basis by which the applicant has since developed "neuralgic" (i.e. nerve derived) pains in his wrists.
Accordingly, having satisfied itself on the above questions, the Tribunal finds that, on the balance of probabilities, the applicant is suffering disabling pain in his hands, worse in the right; and that his pains in his hards are a sequel, poorly understood in terms of medical science, of his previous median nerve injuries, to which he was predisposed, with the pain being of "neuralgic" type, as a form of chronic pain syndrome. It finds no persuasive evidence for reflex sympathetic dystrophy having played a significant role in this except in an historical sense as it is plain enough that early in 1995 RDS of the right hand was diagnosed and successfully treated by Dr. Coleman and Dr. Bradley.
On the basis of these findings the Tribunal has addressed itself to the decision by Comcare to decline liability for the applicant's claimed permanent impairment on the basis that he has not suffered a functional impairment of at least 10% as required by s.24(7) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
It is noted that in making this decision Comcare placed reliance upon Table 9.4 of the approved Guide issued pursuant to the provisions of s.24(5). It is important to note that in the "Principles of Assessment" section of the Guide under the heading "Combined Impairments" it states.
"It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more than one table applies to a single injury separate scores should be allocated to each functional impairment. Where two or more injuries give rise to the same impairment a single rating only should be given."
Under the heading "Fingers and Toes" the Principles state "Impairment relating to the loss or injury to a finger or toe refers not only to amputation or a total loss of efficient use of the whole digit but also to partial loss of efficient use of a digit.
When seeking his opinion on impairment, Comcare officers directed Dr. Coroneos' attention to Table 9.4 which provides as follows:
"MUSCULO-SKELETAL SYSTEM
TABLE 9.4
Limb Function – Upper Limb
(Percentage Whole Person Impairment)
% DESCRIPTION OF LEVEL OF IMPAIRMENT
Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity.
Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding.
Retains some use of limb BUT has difficulty with self care.
Cannot use limb for self care."
In his report of 15 November 1996 Dr. Coroneos focused his attention in particular upon the phrase "digital dexterity" as used in Table 9.4. This is what he said:
"In reviewing the COMCARE GUIDE OF 1988 I can assign no impairment to Mr Fiedler with respect to his upper limbs.
I specifically examined Table 9.4. I do not feel that there is loss of digital dexterity. The definition of dexterity is being able to handle things neatly and I do not feel he has any significant loss.
His complaint of experiencing discomfort on making a full fist and opposing thumb into little finger does not impair dexterity.
I trust my assessment is of use to you."
It is the Tribunal's view that, in context, digital dexterity encompasses more than "handling things neatly". It includes in our opinion the capacity to handle things skilfully and efficiently or, as suggested in Toohey and Australian Postal Commission AAT Decision No. 13360, @ para. 52 "ease of use of the fingers and hand without undue restriction".
We were referred by counsel for the respondent to the decision of Peters and Australian Postal Corporation AAT Decision No. 9680 and Holmes and Comcare (2001) AATA 290 in support of the proposition that the phrase "difficulty with digital dexterity" used in Table 9.4, only applies to cases where such difficulty is "very severe" (Peters) or "very significant or substantial impairment" (Holmes). We have difficulty in accepting these qualifications upon the words used, and see no warrant either in the legislation itself, or the Guide, for introducing such limitations. We think that the Guide lacks clarity and serves to obfuscate rather than illuminate that degree of impairment which it is intended to compensate.
"Difficulty" covers a broad spectrum of restriction and disability and should not necessarily be read down simply because the existence of the prescribed condition results in the automatic assignment to it of a 10% "whole person" impairment. We think the "descriptions of level of impairment" in Table 9.4 are perfunctory and inadequate for their intended purposes and should be reviewed. Nonetheless the Guide has the status of a statutory instrument and, pursuant to s.28(4) of the Act is binding upon this Tribunal. We must therefore give it a reasonable and proper interpretation in arriving at our determination . In our opinion the applicant clearly has difficulty with digital dexterity in both hands, and, indeed, substantial difficulty with digital dexterity with his right hand. On the basis of Tables 9.4 he is thus impaired to the extent of not less than 10% expressed as a percentage of whole person impairment.
We think the words of Olney J in Collins v Repatriation Commission (1994) 33 ALD 559 in dealing with a similar Guide in force under the Veterans' Entitlements Act 1986 are of significance here. He said:
"The Guide does not set down general guidelines. It establishes criteria which are the benchmarks by which the extent of incapacity is to be measured and methods by which the extent of incapacity as so measured is to be converted into a percentage of incapacity … The Guide provides the rules whereby incapacity is to be assessed. The task of the decision maker is to apply the facts of the particular case to the rules so expressed. The decision maker has no role to play in determining if the results achieved is fair or just in a particular case."
We note however that neither Dr. Coroneos nor other doctors paid any attention to the second "Description of Level of Impairment" in Table 9.4 which provides a 20% whole person impairment in respect of an individual who "can use limb for self care but has no digital dexterity or has difficulties grasping and holding". Whilst this criterion is somewhat clumsily expressed it seems plain to us that the present applicant falls squarely within its specification as he has "difficulties grasping and holding". He gave illustrations of this in his evidence and, as indicated above, we found him to be a credible witness on these issues. It would suffice for relevant purposes if this disability could be demonstrated to exist in one hand only, but his complaints of pain and disturbed sensation in both hands producing these sequelae seem to us to provide a more than adequate foundation for finding that the applicant has an entitlement to compensation up to 20% pursuant to s.24 of the Act.
We find that the disabling pain in the applicant's hands resulted from and was caused by injury to his median nerves as we have attempted to explain above, and that such condition is permanent. As a consequence we find that Comcare had a continuing liability to make "top up" payments to the applicant beyond 8 January 1997, and also to pay lump sum compensation under ss.24 and 27 of the Act.
We do not accept the respondent's submission based upon Re Morley and Comcare (1996) 40 ALD 725 and Re Whelan and Department of Defence (1997) 47 ALD 383, that it is not permissible to assess whole person impairment by reference to each limb. With the greatest respect to Senior Member Dwyer we do not find her line of reasoning convincing. Table 9.4 clearly refers to limb (singular) not limbs (plural). As a matter of simple logic if each limb has "difficulty with digital dexterity" and this provides for 10% WPI the two limbs combined must amount to 20% WPI.
Having reached these conclusions the question remains as to the appropriate orders or directions which we should make to determine this review.
First, it is plain that the applicant has expended money on pain relief medication since December 1996. He is thus entitled to something under s.16 of the Act. Second, he is incapacitated for his former employment and is entitled to the accrued payments attributable to such incapacity since 6 December 1996, although, counsel for the respondent points out, it will be necessary for Comcare to assess "suitable employment" issues under s.19 of the Act. Third, he has a permanent impairment which is compensable in accordance with s.24 and Table 9.4 of the Guide.
In accordance with our views expressed above he should receive 10% in respect of each limb giving a total of 19% (in accordance with the combined impairment directive) under description 1 of Table 9.4 or 20% under description 2 of Table 9.4. Of the two we think description 1 is more appropriate. The value of this payment was not canvassed before us and will need to be assessed.
The Tribunal therefore sets aside the decision under review and remits the matter for re-determination by Comcare in accordance with the following directions:
(a)That the respondent pay to the applicant the reasonable cost of medical treatment obtained by the applicant in respect of the injury or disease referred to in para. 3 since 6 December 1996.
(b)That the respondent pay weekly compensation to the applicant in accordance with s.19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury or disease referred to in para. 3 since 6 December 1996.
(c)That the respondent pay to the applicant in respect of his permanent impairment, resulting from the chronic pain syndrome consequent upon his accepted bilateral carpal tunnel syndrome 19% of the maximum amount provided for by s.13 and s.24(9) of the Safety, Rehabilitation and Compensation Act 1988.
We also order that the respondent pay the applicant's costs of the proceedings pursuant to s.67(9) of the Safety, Rehabilitation and Compensation Act 1988.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C. R. Wright Q.C., Deputy President
Signed: Denise Burton
SecretaryDate/s of Hearing 3.4.01, 4.4.01
Written submissions 10.5.01
Date of Decision 12.6.01
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Messrs Gilshenan and Luton
Counsel for the Respondent Mr S Pilkinton
Solicitor for the Respondent Messrs Phillips & Fox
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