Grant v Dateline Imports Pty Ltd
[2022] NSWPICPD 3
•24 January 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3 |
| APPELLANT: | James Leslie Grant |
| RESPONDENT: | Dateline Imports Pty Ltd |
| INSURER: | AAI Limited t/as GIO |
| FILE NUMBER: | A1-7430/20 |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| DATE OF APPEAL DECISION: | 24 January 2022 |
| ORDERS MADE ON APPEAL: | 1. The Principal Member’s Certificate of Determination dated 16 April 2021 is confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – Consequential condition – circumstances in which a diagnosis of the condition is relevant – Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3, Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 discussed – requirement for expert medical opinion |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr W Carney, counsel | |
| PK Simpson & Co | |
| Respondent: | |
| Ms L Goodman, counsel | |
| Hicksons Lawyers | |
| DECISION UNDER APPEAL | |
| PRINCIPAL MEMBER: | Ms J Bamber |
| DATE OF MEMBER’S DECISION: | 16 April 2021 |
INTRODUCTION AND BACKGROUND
James Leslie Grant (the appellant) was injured on 31 July 2015 in the course of his employment as a storeman and packer with Dateline Imports Pty Ltd (the respondent). The appellant was required to lift a heavy box, which fell onto his right hand, pinning his hand down. The appellant reported the injury two weeks later. Liability for the injury to the appellant’s right upper extremity, which was his non-dominant hand, was accepted.
The appellant subsequently alleged that he experienced pain in his left arm as a consequence of using his left upper limb more often because of the right arm injury. He further alleged that he had developed a complex regional pain syndrome (CRPS) as a result of the injury.
The appellant commenced proceedings in the Workers Compensation Commission in which he claimed lump sum entitlements pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the permanent impairment of his right upper extremity, left upper extremity and CRPS. The respondent disputed that the appellant suffered a consequential condition in his left arm as a result of the injury and also disputed that the appellant suffered from CRPS.
On 1 March 2021, prior to the matter being listed for arbitration, the Workers Compensation Commission was abolished by operation of cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became one within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date.[1] The matter was listed for arbitration and allocated to a Principal Member of the Commission, Ms J Bamber. The Principal Member issued a Certificate of Determination dated 16 April 2021. The Principal Member did not accept that the appellant suffered a consequential condition in his left arm as a result of the injury and determined that the question of whether the appellant had a rateable diagnosis of CRPS was a matter for a Medical Assessor. She remitted the claim for lump sum entitlements to the President for referral to a Medical Assessor to assess the appellant’s right upper extremity and any CRPS affecting the right upper extremity.
[1] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
The appellant appeals that decision. The appeal is limited to the Principal Member’s findings in relation to the appellant’s left upper extremity.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the matter to be determined on the papers. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me (including the amended submissions of both parties filed in response to a Direction issued by a delegate of the President), and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
In accordance with s 352(3A) of the 1998 Act, there is no appeal against an interlocutory decision of the Commission without leave of the Commission. This appeal is limited to the Principal Member’s determination that she was not satisfied that the appellant suffered a condition in the left upper extremity that was causally related to the accepted injury to the right upper extremity.
The appellant asserts that the Principal Member’s decision appealed is a final decision so that leave of the Commission is not required. The respondent submits that the determination was a final decision because it finally disposed of the appellant’s entitlement in respect of the alleged left arm condition, citing a passage from the observations of Gibbs J (as his Honour then was) in Licul v Corney[2] as authority for that proposition.
[2] [1976] HCA 6; 180 CLR 213 (Licul).
The meaning of “interlocutory” in subs 352(3A) is undefined. In Licul, Gibbs J (as his Honour then was) said (footnotes omitted):
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co v Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[3]
[3] Licul, [11].
The observations of the High Court as to what constitutes an interlocutory order provide some guidance but need to be considered in the context of the legislative and procedural framework of the Commission.
There are many Presidential decisions as to whether a decision is or is not interlocutory. It is not necessary to refer to each of them, however, the following decisions assist in identifying the established principles applicable to this case.
In Maricic v Medina Serviced Apartments Pty Limited,[4] Acting Deputy President Snell (as he then was) considered similar determinations to the decision made by the Principal Member in this case. He said:
“The Appellant Worker submits the nature of the Arbitrator’s determination is that ‘the injuries determined to have been suffered as a result of the appellant’s workplace accident have been finally and bindingly determined.’ Reference is made to both the decision in Hawkins, and the decision of the High Court in Licul v Corney. I accept this submission. It is consistent with the reasoning in Hawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding, and should not be characterized as ‘interlocutory’.”[5]
[4] [2007] NSWWCCPD 196 (Maricic).
[5] Maricic, [20].
The distinction between whether a decision is interlocutory in nature or a final decision was further examined by Roche DP in EdmundDiab v Salem Naji,[6] where he determined:
“The Arbitrator’s order concerning remitter has been made following his determination of a question concerning liability, that is, the occurrence of injury to both the neck and back. The determination of those issues was made as required by the provisions of section 293(3) of the 1998 Act ...
The Arbitrator’s determination concerning the dispute as to the nature of the injury received by Mr Naji is such that, in the words of Gibbs J, it does ‘... finally dispose of the rights of the parties.’ Those findings are conclusive, and bind the parties and define the rights and liabilities of each concerning the various heads of entitlement to compensation benefits as provided by the Acts. The Appellant, on this appeal, challenges those findings of fact made by the Arbitrator concerning injury. In the circumstances, I conclude that the Arbitrator’s decision, including those findings of fact, is not one of an interlocutory nature within the meaning of section 352(8).”[7]
[6] [2010] NSWWCCPD 33 (Naji).
[7] Naji, [20]–[21].
The reasoning of Snell ADP and Roche DP in the above cases is equally applicable to the present appeal and indicates that the decision sought to be appealed is a final decision as to liability for the appellant’s alleged condition in the left upper extremity. The appellant therefore does not require leave to appeal the decision.
THE EVIDENCE
This appeal is limited to a challenge to the Principal Member’s determination that she was not satisfied that the appellant suffered from a condition in his left upper extremity as a consequence of overusing his left arm because of his accepted injury to his right upper extremity. It is therefore not necessary to summarise the evidence pertaining to the Principal Member’s other findings and orders.
The lay evidence
The appellant made a statement dated 14 December 2020.[8] He gave a consistent history of the injury and the subsequent treatment provided by the numerous medical practitioners and specialists following his right upper extremity injury.
[8] Application to Resolve a Dispute (ARD), pp 1–6.
The appellant advised that he subsequently developed a condition in his left arm, which he attributed to the need to use the left arm much more frequently in order to accommodate the limitations in the right arm. He stated that he experienced left wrist pain that radiated into his left hand and he had clicking and occasional locking in the left wrist. The appellant also described the development of CRPS, which he said involved the whole of the right upper limb, left upper limb (especially the left hand, wrist and forearm), right shoulder and neck, right lower back and right hip and thigh. He added that he had a patch of skin on the palm of his hand (presumably the left hand) which was hypersensitive to touch.
The appellant also provided a detailed account of what he perceived were discrepancies in the opinions of the medico-legal experts retained by the respondent.[9]
[9] ARD, pp 7–9.
A further document dated 13 December 2020 was in evidence, which was signed by a Mr Daniel Poole, who advised that he was the appellant’s next-door neighbour.[10] Mr Poole stated that, prior to the work injury, the appellant was able to perform most maintenance tasks and was very house proud. Mr Poole said that, following the injury, the appellant’s health and abilities declined significantly, with difficulty performing housework, mowing lawns and other mundane tasks. Mr Poole asserted that he felt that the appellant was overcompensating by using his left side in order to avoid using his injured right arm, which resulted in damage to the appellant’s left side. Mr Poole added that he had discussed those difficulties with the appellant, who was concerned and worried for his future. Mr Poole confirmed that he had witnessed a steady decline in the appellant’s physical health and emotional well-being.
[10] ARD, p 10.
The relevant evidence from the treatment providers
The first reference to symptoms in the left wrist was made by Dr Mark Nabarro, hand and microsurgeon, in a post-operative report dated 29 January 2018.[11] Dr Nabarro had performed surgery on the right wrist ten days previously and it is abundantly clear that the reference to the left wrist was in fact a reference to symptoms in the right wrist. The Principal Member concluded that to be the case and no issue has been raised by either party as to that interpretation.
[11] Reply to Application to Resolve a Dispute (Reply), p 45.
The appellant attended Ms Hayley Coleman and Ms Julia Wild, hand therapists, of Southern Hand Therapy on a number of occasions from 20 February 2017.[12] On 8 October 2018, Ms Wild reported that there was more significant pain in the right wrist following a long drive, despite minimal use of the right wrist while driving. Ms Wild also noted the onset of left forearm and wrist pain, which the appellant attributed to the left arm doing “all the work.”[13]
[12] ARD, pp 118–190.
[13] ARD, p 190.
Dr George Han, the appellant’s general practitioner, referred the appellant to Dr Nabarro by letter dated 11 December 2017. The referral was in respect of the appellant’s continuing right hand/wrist injury.[14] Dr Nabarro reported on the appellant’s progress on numerous occasions after he performed the surgery on the appellant’s right wrist in January 2018.[15] Relevantly, Dr Nabarro reported to Dr George Han on 11 April 2019.[16] Dr Nabarro recorded the appellant’s complaints as consisting of pain in the hand, shoulder and neck, difficulties using the right hand for most activities, using his left hand for most activities, and developing pain in the left hand and wrist.
[14] ARD, p 92.
[15] ARD, pp 98–109.
[16] ARD, p 110.
A functional capacity assessment was undertaken by Ms Trudi Crapp, rehabilitation provider, on 23 May 2019.[17] Left wrist and hand symptoms were described as cracking of the wrist, shaking and pain spasms. The appellant’s pain was aggravated by changing gears when driving and spreading his fingers wide after working. She recorded that the appellant primarily used his left upper extremity to perform most tasks.
[17] Reply, pp 78–91.
Ms Crapp identified the following relevant limitations on the appellant’s functioning:
“· Reported pain in the right wrist, hand, shoulder and neck associated with gripping, fine motor tasks and manual handling.
· Sub-optimal manual handling skills demonstrated by asymmetrical use of the left upper limb with minimal contribution of the right upper limb.
· Poor grip strength and range of motion of the right hand, wrist and shoulder impacting on contribution to bilateral tasks.”[18]
[18] Reply, p 79.
On 3 June 2019, the appellant attended Dr James Yu, pain management specialist. Dr Yu recorded that the appellant presented with persistent neck and right upper limb pain and dysfunction. Dr Yu also noted that the appellant complained of left-hand pain “most probably due to overcompensation.” Dr Yu suggested that the appellant attempt to use his right arm as much as his left, in order to “prevent further physical deconditioning.”[19]
[19] Reply, p 74.
The appellant also attended Dr Tim Ho, pain and rehabilitation specialist. Dr Ho reported to Dr Han on 21 January 2020.[20] Dr Ho described the appellant’s pain in the left upper extremity as “chronic neuroplastic … pain secondary to central sensitisation.” Dr Ho said that neurological examination of the left upper limb was unremarkable.
[20] Reply, pp 104–105.
Dr Han referred the appellant to Western Sydney Pain Centre on 16 December 2019, noting that the appellant’s work injury had become complicated by pains in both arms.[21] Dr Han also reported to the respondent on 23 April 2020. He noted that the appellant complained of increasing pain and disabilities in both arms and hands, with difficulty carrying out daily living activities.[22]
The medico-legal experts
[21] ARD, p 227.
[22] Reply, p 113.
Dr Howard De Torres, hand and plastic reconstructive surgeon
Dr De Torres examined the appellant and provided a report dated 6 April 2020 at the request of the appellant.[23] Dr De Torres advised that the appellant did not complain of any disability in the left arm. He observed that, as the left arm was the appellant’s dominant arm, it would be difficult to establish an overuse syndrome, and in any event, none of the clinical notes supplied to him referred to complaints in the left hand. Dr De Torres assessed the appellant’s whole person impairment as 35%, which was based on an assessment of the right upper extremity.
[23] ARD, pp 59–68.
Dr Neil Cochrane, neurosurgeon and spine surgeon
Dr Cochrane provided a report dated 20 August 2020 at the request of the appellant, following a video interview with the appellant.[24] He summarised the history of injury and the treatment provided, which he noted resulted in worsening of the appellant’s symptoms. Dr Cochrane further noted the onset of left upper limb symptoms in about late 2018 or early 2019, which progressed, and which felt like “an overuse-type phenomenon, or a ‘spreading of pain’ from the right side to the left.” He noted that the appellant complained of spasms in the left upper limb and an inability to write with his dominant left hand.
[24] ARD, pp 69–85.
Dr Cochrane referred to Dr Yu’s diagnosis of CRPS in respect of the right upper limb and a chronic pain syndrome with central sensitisation in the left upper limb. Dr Cochrane provided details of the appellant’s current complaints. In respect of the left upper extremity, he noted that the appellant was left hand dominant and complained of shaking and a tremor, pain and swelling in the wrist and hand and lack of dexterity. Dr Cochrane further noted that the appellant was severely restricted in respect of his ability to perform domestic, social, and personal hygiene activities, as well as driving his manual car.
As the consultation was performed by video link, Dr Cochrane did not perform a physical assessment of the appellant. Dr Cochrane relied instead upon a spinal and neurological examination form completed by Mr Sam Alolepa, physiotherapist on 13 August 2020. Mr Alolepa recorded neck pain on flexion and extension, with restrictions in the thoracic and lumbar spine and significant pain avoidance behaviour resulting in great difficulty in the ability to assess both upper limbs.
Relevantly, Dr Cochrane concluded that:
“The history, examination findings and the correspondence from the various provider practitioners are entirely consistent with the development of a complex regional pain syndrome evolving in the injured right upper limb, now involving the entirety of the right upper extremity, and with what appears to be a central pain phenomenon emerging with neuropathic pain in the left upper limb, particularly in the region of the hand, wrist and forearm.”[25]
[25] ARD, p 76.
Dr Cochrane concurred with the diagnosis provided by Dr Ho of a chronic neuropathic right arm pain caused by CRPS and chronic neuroplastic left arm pain secondary to central sensitisation. Dr Cochrane described the appellant’s left arm condition as “a chronic pain syndrome emerging and slowly evolving in the dominant left upper extremity.”[26] He considered that if it were not for the work-related injury, the appellant would not have developed the chronic pain syndrome, so that the appellant’s employment with the respondent was the cause of those symptoms involving the central nervous system.
[26] ARD, p 77.
In a separate report of the same date, Dr Cochrane provided an assessment of the appellant’s whole person impairment. He assessed 35% whole person impairment, which included an assessment of the right and left upper extremities.[27]
[27] ARD, pp 86–88.
Dr Robert Breit, orthopaedic surgeon
Dr Breit was qualified by the respondent to examine the appellant and provide an opinion in respect of the respondent’s liability. Dr Breit reported to the respondent on 5 August 2020.[28] He recorded the appellant’s presenting complaints, which relevantly included an onset of left arm symptoms after ceasing work four months prior to the consultation. Dr Breit noted that the appellant had severe limitations with his right hand and was left hand dominant. The left arm symptoms were described as shaking, with an inability to write, dress himself and attend to self-care. Dr Breit observed inconsistencies in the appellant’s presentation in relation to both upper limbs. He diagnosed Type 1 CRPS of the right upper extremity, assessment of which, he said, was complicated by the appellant’s inconsistent presentation. Dr Breit considered that because of the inconsistencies, an assessment of the appellant’s whole person impairment could not be made on the basis of range of movement and applied the State Insurance Regulatory Authority’s Guides, Chapter 1 paragraph 1.36 to conclude that the appellant’s whole person impairment of the right upper extremity was 30%, with no impairment of the left upper extremity. Dr Breit confirmed his approach and opinion in a supplementary report dated 13 August 2020.[29]
[28] Reply, pp 122–129.
[29] Reply, pp 130–131.
Associate Professor Allan Molloy, anaesthetist and pain management specialist
A/Prof Molloy was also asked by the respondent to examine and assess the appellant. He provided a report dated 28 August 2020.[30] He recorded the appellant’s complaints as constituting significant restrictions in the use of the right arm, as well as spasms, shaking and cracking in the left hand and wrist with sensitivity to touch and pain referred into the ulnar region.
[30] Reply, pp 132–138.
A/Prof Molloy concluded that:
“Work has been a substantial contributing factor to the pain. His left hand/wrist may be associated but it is unlikely as there are no manifestations of complex regional pain syndrome which can spread through the body. I believe a bone scan will help identify this. I consider the pain in the left arm, hand, wrist is not causally related to the injury of 31/7/2015.”[31]
[31] Reply, p 135.
A report from A/Prof Molloy bearing the date of 14 September 2020 was annexed to the ARD.[32] That report is a duplicate of the report dated 28 August 2020 and does not add anything further in terms of evidence before the Principal Member.
[32] ARD, pp 37–41.
Dr Loretta Reiter rheumatologist
The appellant was subsequently also assessed by Dr Reiter on behalf of the respondent. She reported to the respondent on 28 October 2020.[33] Dr Reiter recorded the appellant’s history of treatment and complaints of pain in respect of the right upper extremity, which, over the previous five months had spread through the appellant’s right side from the neck, back and through to the right upper thigh. Dr Reiter recorded the appellant’s presenting symptoms, including constant pain in the left upper limb which had developed over the previous 18 months. Dr Reiter noted that the appellant attributed his left arm symptoms to greater use of that limb because of the right upper limb condition. She noted the limitations and the appellant’s difficulties in attending to domestic and other living tasks, including having to use his left hand to vacuum the house, which he could only perform in stages.
[33] Reply, pp 142–153.
Dr Reiter queried whether the appellant might have symptoms consistent with fibromyalgia. She considered that the appellant displayed features of CRPS, however did not satisfy all of the diagnostic criteria set out in Table 17.1 of the State Insurance Regulatory Authority’s Guides for the Evaluation of Permanent Impairment (4th Edition – 1 April 2016). Dr Reiter formed the view that she did not agree with Dr Cochrane’s diagnosis of CRPS, which was arrived at without reference to the criteria set out in those guidelines. She was of the opinion that the appellant’s symptoms were more in keeping with a diagnosis of fibromyalgia, which, she said, is a condition that can evolve over time.
Dr Reiter discussed the research data in respect of whether fibromyalgia can be attributed to physical trauma and concluded that, if the appellant did come to satisfy the criteria for fibromyalgia, it was not due to his work-related right upper extremity injury. She agreed with the opinions of Dr Breit and A/Prof Molloy that the condition in the left upper extremity was not causally related to the accepted work injury.
Dr Reiter was asked by the respondent to provide a supplementary opinion addressing the opinion of Dr Breit that the appellant did in fact suffer from CRPS. She reported to the respondent on 8 January 2021.[34] She noted Dr Breit’s method of assessment and conclusions.
[34] Application to Admit Late Documents dated 15 January 2021, pp 2–6.
Dr Reiter was of the view that the appellant suffered from widespread generalised musculoskeletal pain which was not regional in nature and consistent with a diagnosis of fibromyalgia. She confirmed her view that the appellant’s condition did not meet the criteria for a diagnosis of CRPS and that, if the appellant satisfied the criteria for fibromyalgia, that condition was not attributable to the accepted work injury.
THE PRINCIPAL MEMBER’S REASONS
The Principal Member identified the issues for determination and the authorities she considered relevant to a determination of those issues. She reviewed the evidence of the various medical practitioners who had treated the appellant and the evidence provided by Dr De Torres and that of Dr Cochrane. The Principal Member also summarised the evidence of Dr Breit, A/Prof Molloy, and Dr Reiter.
In respect of the medico-legal opinions, The Principal Member made the following observations:
(a) Dr De Torres recorded that the appellant did not complain to him about problems in the left upper limb. In addition, the Principal Member found it difficult to identify the doctor’s diagnosis in respect of the right upper extremity. She noted Dr De Torres’ assessment of the right upper extremity was based on the appellant’s range of movement, rather than the applicable guidelines;
(b) Dr Breit diagnosed CRPS of the right upper extremity which he said was complicated by inconsistencies between the appellant’s presentation at the examination and when otherwise observed, so that he considered assessment by range of movement was not appropriate;
(c) Dr Cochrane assessed the appellant’s CRPS by reference to the American Medical Association Guides – 5th edition and not the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment – 4th Edition;
(d) A/Prof Molloy considered that the pain in the left arm, hand and wrist was not causally related to the work injury, however, he appeared to have only considered the left arm symptoms in terms of a diagnosis of CRPS, rather than in terms of whether the appellant suffered a condition consequent upon overuse of that limb, and
(e) Dr Reiter was the only doctor to suggest a diagnosis of fibromyalgia, a diagnosis that the Principal Member considered should be treated with caution. The Principal Member said that this was because Dr Reiter had accepted the occurrence of a traumatic injury to the right wrist and right middle finger and also accepted that the appellant displayed some features of CRPS, yet Dr Reiter disagreed with Dr Cochrane’s view that the symptoms satisfied all of the criteria for a diagnosis of CRPS.
The Principal Member reviewed the evidence in respect of whether the appellant suffered from CRPS and discussed a decision of the former Arbitrator, Mr G Egan in Elsworthy v Forgacs Engineering Pty Ltd,[35] relied upon by the appellant. The Principal Member concluded that she agreed with the reasoning in Elsworthy that the issue of whether there was a rateable diagnosis of CRPS should be a matter for an Approved Medical Specialist (now a Medical Assessor of the Commission). She remitted the matter to the President for referral accordingly.
[35] [2017] NSWWCC 64 (Elsworthy).
The Principal Member proceeded to consider the issue as to whether the appellant suffered from a condition in the left upper extremity as a consequence of overuse because of the right upper extremity injury. She considered the submissions made by each party and noted the references by the treatment providers to left arm symptoms between April 2019 and April 2020.
The Principal Member pointed to the evidence contained in the appellant’s statement dated 14 December 2020. She acknowledged that there were references to the appellant having used his left (dominant) arm more because of the right arm injury but observed that there was no clear diagnosis provided by the treating doctors.
The Principal Member noted that Dr Ho did not diagnose a consequential condition in the left upper extremity as a result of overuse of that arm. She further noted the history recorded by Dr Cochrane that the left arm symptoms had developed and progressed over a period of eighteen months, described as “feeling like overuse,” and spreading pain from the right to the left side accompanied by spasms and difficulty writing. The Principal Member referred to Dr Cochrane’s conclusion that there was chronic pain and sensitisation affecting the dominant left arm involving central pain responses, which were unpredictable, and that there were pain responses in the central nervous system. The Principal Member noted that Dr Cochrane did not attribute the cause of those symptoms to overuse.
The Principal Member observed that neither Dr De Torres nor the other medico-legal experts found a left arm condition consequent upon the right arm injury and A/Prof Molloy specifically said that the pain in the left arm, hand and wrist was not causally related to the accepted right upper extremity injury. The Principal Member concluded that, given that Dr Cochrane had diagnosed a central pain syndrome affecting the left upper limb as a result of CRPS, there was no basis upon which she could find that the symptoms in the left upper extremity resulted from overuse of the left arm because of the right upper extremity injury. She pointed out that this was the allegation brought by the appellant in these proceedings.
The Principal Member observed:
“[The appellant] has the onus of proof and I find that he has not discharged it. Applying Nguyen, I do not feel an actual persuasion of the existence of the fact that [the appellant] did sustain a condition in his left arm through overuse. While I have identified some references to him using his left arm more, I accept the general tenor of the respondent’s submissions that given [the appellant] is left arm dominant there needs to be specific evidence as to what tasks comprised the overuse and then there needs to be an expert who considers that evidence and makes a diagnosis as to what condition has developed in the left upper extremity from overuse. I find that Dr Cochrane does not conduct such an analysis. I find that the causal chain as discussed in Kooragang and Kumar has not been established. There seems to be a disconnect between the case run by Mr Grant and the opinion of Dr Cochrane.”[36]
[36] Grant v Dateline Imports Pty Ltd [2021] NSWPIC 83 (reasons), [127].
The Certificate of Determination issued on 16 April 2021 records:
“The Commission determines:
1. Award for the respondent in relation to the allegation of a consequential condition in the applicant’s left upper extremity from overuse as a result of the injury to the right upper extremity on 31 July 2015.
2. That the issue of whether the applicant has a rateable diagnosis of Complex Regional Pain Syndrome is a matter for assessment by a Medical Assessor.
3. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
(a)Body parts/systems: right upper extremity and Complex Regional Pain Syndrome (affecting the right upper extremity).
(b)Date of injury: 31 July 2015.
4. The documents to be referred to the Medical Assessor are to include those attached to the Application to Resolve a Dispute, Reply and Application to Admit Late Documents dated 15 January 2021.”
GROUNDS OF APPEAL
The appellant brings two grounds of appeal, alleging error on the part of the Principal Member as follows:
(a) Ground One: error in finding as a matter of law that a “diagnosis” was needed to determine if a consequential injury had occurred, and
(b) Ground Two: error of law in determining that the appellant’s consequential condition in the left hand bore a higher burden of proof because it was his dominant hand.
SUBMISSIONS
Ground One
The appellant’s submissions
The appellant refers to the Principal Member’s observation that there was “a problem” that there was no clear diagnosis provided by the treating doctors and that Dr Ho made no diagnosis of a consequential condition in the left upper extremity. The appellant further refers to the Principal Member’s reference to Dr Cochrane’s diagnosis of pain spreading from the right side to the left and her finding that she did not feel an actual persuasion that there was a condition in the left arm which was related to overuse.
The appellant submits that the Principal Member fell into error by misdirecting herself in considering that a diagnosis was required. The appellant asserts that it is clear that a finding of a consequential condition is not dependent upon a diagnosis, referring to my decision in Arquero v Shannons Anti Corrosion Engineers Pty Ltd[37] and the decision of Roche DP in Kumar v Royal Comfort Bedding Pty Ltd.[38] The appellant submits that the basis for finding a consequential condition is the presence of symptoms and not a diagnosis. The appellant adds that, in this case, the Principal Member set out the detailed evidence of the appellant’s complaints and symptoms in the left arm.
[37] [2019] NSWWCCPD 3 (Arquero), [140].
[38] [2012] NSWWCCPD 8 (Kumar).
The appellant further refers to the Principal Member’s finding that because Dr Cochrane considered that the pain did not result from overuse (but resembled it), Dr Cochrane did not support the appellant’s case. The appellant reiterates that the Principal Member erred because, if a diagnosis is not the test for making a determination of a consequential injury, then rejecting the appellant’s case on the basis of no diagnosis was wrong. The appellant describes as “important” the “finding” made by Dr Cochrane that the condition in the left arm related to the right arm injury.
The appellant asserts that there was ample evidence to support his case. That is, there was evidence of complaints in the left arm and findings of an overuse injury were made by Dr Ho, Dr Nabarro and Ms Crapp. The appellant submits that this evidence was contrary to the Principal Member’s finding, which was in error, so that the decision should be set aside.
The respondent’s submissions
The respondent submits that what the Principal Member was actually saying was that none of the doctors identified a condition in the left upper extremity which was caused by overusing that arm because of the right upper limb injury. The respondent says that this is borne out by the Principal Member taking into account that Dr Ho did not refer to any condition in the appellant’s left arm being attributable to overusing the right upper extremity and that Dr Ho described the appellant’s “pain issues” as “chronic neuroplastic left [upper extremity] pain secondary to central sensitisation.”
The respondent refers to Dr Cochrane’s opinion that the left arm symptoms were referrable to CRPS, chronic pain syndrome and central sensitisation. The appellant further refers to the history recorded by Dr De Torres in his report dated 6 April 2020 that the appellant did not complain of left arm symptoms but, in any event, it would be difficult to substantiate a compensatory overuse because the appellant was left arm dominant.
The respondent submits that the Principal Member gave careful consideration to the evidence from the appellant’s treatment providers about the appellant’s left upper extremity, as well as the appellant’s statement evidence. The respondent contends that the Principal Member was well appraised of the appellant’s medical history and made her determination on the basis of that evidence.
The respondent refers to the appellant’s reliance on Arquero and submits that that case concerned the timing and onset of symptoms, whereas this case turned on the substance of the available evidence. The respondent asserts that the Principal Member determined that the appellant’s symptoms in his left upper extremity resulted from CRPS and not a consequential condition arising from overuse of the left arm.
The respondent submits that the Principal Member did not misdirect herself but was simply not satisfied that the appellant had made out his case that he suffered from a condition in the left upper extremity as a consequence of overusing that arm. The respondent contends that this ground of appeal should be dismissed.
Ground Two
The appellant’s submissions
The appellant refers to the Principal Member’s acceptance of the proposition put forward by the respondent that specific tasks needed to be identified because the condition alleged is in respect of the appellant’s dominant arm. The appellant asserts that the Principal Member was in error in accepting that submission, the submission had no basis in law, and the Principal Member misdirected herself as to the proper test. The appellant says that there is no distinction to be drawn between the dominant and the non-dominant arms.
The appellant submits that, applying Arquero and Kumar, the proper test is whether the symptoms in the left arm were due to overusing the left arm. The appellant contends that to apply any other test is to overly complicate the task and impose additional variables, such as how much overuse is sufficient to satisfy the test. The appellant asserts that such variables are unquantifiable, and the Principal Member placed the evidentiary bar too high, which the appellant could not overcome.
The appellant points to the evidence of Mr Poole, an independent witness, and submits that this evidence of itself is sufficient to conclude that the left arm was overused. The appellant says that lawn mowing, housekeeping and daily hygiene activities involve the application of pressure from both arms, and common-sense dictates that the non-dominant hand is equally as important as the other hand in performing those activities. The appellant further points to the evidence of Ms Crapp, in which she specifically referred to the left arm being restricted because of overuse. The appellant also refers to the evidence of Dr Nabarro and Dr Ho, discussed by the Principal Member at [118] of her reasons.
The appellant concludes that the Principal Member has erred, that a finding should be made that the appellant suffers from a consequential condition in his left upper extremity, and that both upper extremities should be remitted to the President for referral to a Medical Assessor for assessment of the appellant’s whole person impairment.
The respondent’s submissions
The respondent submits that the mere presence of symptoms does not necessarily establish a condition consequent upon overuse and, as in this case, the symptoms may be referrable to some other cause. The respondent says that this is why there must be an expressed medical opinion as to causation of the condition in the left upper extremity. The respondent submits that the Principal Member found that, while there were opinions expressed by the medical experts that the condition in the left upper extremity resulted from CRPS or central sensitisation, there was no medical opinion that the condition arose from overuse.
The respondent contends that what was required was evidence that the appellant, in fact, was overusing his dominant arm. That is, there needed to be evidence that the appellant was now using his dominant arm more because of his right arm injury and there was none. The respondent points out that even Dr De Torres expressed the view that it would be difficult to establish a compensatory overuse.
The respondent asserts that the appellant bore the onus of proof and the Principal Member was not satisfied of the fact that the appellant used his left upper extremity any more than was usual. The respondent submits that the Principal Member did not fall into error and Ground Two of the appeal should be dismissed.
The appellant’s submissions in reply
The appellant makes no submissions in reply to the respondent’s submissions in respect of either of the grounds of appeal.
CONSIDERATION
The Principal Member’s determination that she was not satisfied that the appellant suffered from a condition in his left arm as a consequence of overuse is a factual determination involving a question of causation. In order to make such a determination, the Principal Member was required to give consideration to all of the evidence before her and the inferences that could be drawn from those facts. Such findings of fact will not normally be disturbed if they have rational support in the evidence.[39] The principles applicable to disturbing a Commission member’s factual determination have been frequently considered in appeals to a Presidential member and were summarised by Roche DP in Raulston v Toll Pty Ltd.[40] It is not necessary to recite that summary here.
[39] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
[40] [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20].
In addition, a useful overview of the principles to be applied in relation to an appeal from a primary judge’s findings of fact can be found in the judgment of Basten JA (with Allsop P agreeing) in Najdovski v Crnojlovic[41] as follows (citations omitted):
“Once primary facts have been found and relevant inferences drawn, the ultimate conclusion may depend upon an evaluative judgment which may not be amenable to precise justification. The constraints which apply to a review of such a judgment recognise that views may reasonably differ as to the appropriate result and that error will not be found if the result is within the appropriate range. It may be that error is demonstrated in failing to reveal a process of reasoning where, although relevant and material facts have been found, the basis for the final conclusion remains impenetrable. There may be occasions in which such a result will demonstrate a failure to fulfil that part of the judicial function which requires revelation of the reasoning process, but more commonly such a case will be resolvable on the basis that the findings of fact are not as they appear or that there is otherwise an unrevealed error of principle.”[42]
[41] [2008] NSWCA 175; 72 NSWLR 728 (Najdovski).
[42] Najdovski, [22].
While the issues to be determined by the Principal Member were questions of fact, the appellant asserts legal error on the part of the Principal Member. Firstly, it is asserted that the Principal Member applied the wrong principle in that she required a medical diagnosis of the appellant’s left arm condition (Ground One of the appeal), and secondly, that the Principal Member applied a higher standard of proof than that required (Ground Two).
Ground One: error in finding that a “diagnosis” was needed to determine if a consequential injury had occurred
The appellant submits that a determination that a condition resulted from a work-related injury does not require a diagnosis, and the presence of symptoms is all that is required. The appellant relies upon Arquero and Kumar as authorities for that proposition. The appellant’s submission is misplaced. Each of those cases were determined on the basis of the available evidence and there was clear evidence and medical opinion that the worker’s symptoms were as a consequence of the work-related injury. There was no satisfactory contrary opinion.
In Arquero, the worker suffered a right knee injury in 2000. Many years later, in fact in about 2014, he developed symptoms in his left knee. There was clear evidence that, before the onset of the left knee symptoms, the worker’s right knee injury had significantly deteriorated and surgical intervention took place, resulting in leg length discrepancy. Several medical experts observed over time that the worker displayed an altered gait and recorded worsening right knee symptoms, which evidence was consistent with the worker’s statement evidence. A medico-legal expert provided the necessary opinion as to the connection between the right knee injury and the consequent left knee symptoms, which opinion was based on a history consistent with the other available medical evidence. That expert did not make a diagnosis of the left knee condition. I determined that, on the basis of the available evidence, there was sufficient evidence to support the causal connection and it was not fatal that the medico-legal expert had not provided a diagnosis.
Similarly, in Kumar, the worker’s evidence of experiencing pain in his right shoulder when relying on his arms to lift himself after his back surgery was unchallenged and plausible, with the only competing evidence being evidence from a medico-legal expert that the shoulder pathology was not significant. That opinion did not address the issue for determination. Roche DP’s observations about there being no need to identify the pathology of the condition should be considered in the context of the available evidence in that case, where the cause of the condition was clearly apparent from the factual and medical evidence.
Deputy President Snell reviewed the relevant authorities in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan.[43] He made the following observations:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified. In Kumar the relevant finding was based on the existence of symptoms.” (my emphasis)[44]
[43] [2016] NSWWCCPD 23 (Brennan).
[44] Brennan, [169].
Thus, the notion that it is not necessary to identify the pathology causing the symptoms is couched in terms of the issues for determination and the available evidence.
In the present case, the evidence to some extent supported the notion that the appellant was relying more heavily on his left arm to perform some tasks, particularly in 2018 and 2019, and that the appellant attributed his left arm symptoms to those actions. The appellant reported using his left arm more to Ms Wild and Dr Nabarro. Ms Crapp observed greater contribution from the left arm in performing bilateral tasks, and Dr Yu initially thought the left arm pain was probably due to overcompensation. The Principal Member referred to that evidence at [118] of her reasons. The issue before the Principal Member, however, was not limited to whether the appellant did or did not overuse his left arm. There was a clear issue as to whether the symptoms in the left arm resulted from overuse (which was the pleaded case) or some other cause, and, in the light of the conflict in the medical evidence as to those causes identified, a diagnosis which might lead to the identification of the cause of the appellant’s left arm condition was significantly relevant. In other words, there was substantial evidence that there was another cause for the symptoms in the left upper extremity.
The Principal Member reasoned as follows:
“The problem is that while there are some references to Mr Grant using his dominant left arm more because of his right arm injury, there is no clear diagnosis by the treating doctors.”[45]
[45] Reasons, [120].
It is apparent that the Principal Member was looking for a medical opinion that the symptoms experienced by the appellant in his left upper extremity were referable to an overuse syndrome rather than some other cause.
The Principal Member considered the medical evidence in an attempt to find support in that evidence as to the causal connection between the symptoms and the appellant’s alleged overuse of the left arm. She noted that Dr Ho did not diagnose a consequential condition in the left upper extremity due to overuse. She further noted that while Dr Cochrane referred to a type of overuse phenomenon, he identified the symptoms in the left upper limb and concluded that the cause of the symptoms was “a chronic central pain syndrome and central sensitisation now affecting his dominant left upper limb.” That opinion was consistent with the conclusion ultimately reached by Dr Yu and did not support the notion that the symptoms were caused by overuse.
Thus, while in many matters involving a claim for compensation in respect of a condition consequent upon an injury identification of a diagnosis is not necessary or relevant, each case turns on its own facts and the available evidence. The Principal Member considered that the absence of a diagnosis was unhelpful in the context of the tension between the allegation that the symptoms were caused by overuse and the various medical opinions that the symptoms were caused by a central neuropathic type pain, which no doctor attributed to overuse. It is apparent that an unequivocal medical opinion diagnosing a connection between the appellant’s left upper limb condition and overuse would have been of undoubted assistance.
I do not accept that the Principal Member applied the wrong test or legal principle, or that she erred in observing that there was no clear diagnosis that would support the allegation that the appellant’s symptoms in the left upper extremity were as a result of the appellant overusing that arm.
The appellant asserts that there was ample medical evidence to support the appellant’s case and points to the evidence of Dr Ho, Dr Nabarro and Ms Crapp. This submission does not fall strictly within the ambit of the appeal, however in any event, Dr Ho described the appellant’s pain in the left upper extremity as chronic neuroplastic pain secondary to central sensitisation. He said that neurological examination of the left upper limb was unremarkable. He did not offer an opinion that the appellant’s left arm symptoms were as a consequence of overuse. Dr Nabarro’s evidence also fell short of expressing a causal connection between overuse and the presence of symptoms and Ms Crapp’s observations were of hand and arm function but did not include a discussion of the appellant’s symptoms or their causes.
It follows that this ground of appeal fails.
Ground Two: error in determining that the appellant’s consequential condition in the left hand bore a higher burden of proof because it was his dominant hand
The appellant submits that there is no distinction to be drawn between whether the arm that developed symptoms was the appellant’s dominant or non-dominant arm and that the Principal Member erred in requiring the evidence to address the specific tasks undertaken. The appellant submits that the Principal Member erred in law by setting a higher standard of proof than was required.
The appellant submits that the evidence of Mr Poole of itself was sufficient to conclude that the appellant’s left arm was overused. Mr Poole’s evidence fell far short of establishing the appellant’s case. Whether Mr Poole “felt” that the appellant was overcompensating by using his left side in order to avoid using his injured right arm, which in his view resulted in damage to the appellant’s left side, is far from compelling evidence as to the fact. Further, there is no evidence that Mr Poole is appropriately qualified to express a view on causation. The submission is rejected.
The Principal Member’s observations about what was required to establish an overuse and her conclusions about that evidence have been reproduced at [53] above. She noted and observed that:
(a) the appellant bore the onus of proving his case that the symptoms in the left arm resulted from overuse;
(b) while there was some evidence of the appellant using his left arm more than he did normally, there needed to be specific evidence of the tasks undertaken, and
(c) there needed to be expert opinion based on that evidence as to whether the condition from which the appellant suffered was caused by that overuse.
The appellant asserted that he used his left arm more because of the right arm injury. It is to some extent relevant that the appellant was left hand dominant in that people generally place greater reliance on their dominant arm to do more tasks than they would with their non-dominant arm in any event. In that context, it was not unusual that the Principal Member looked for evidence of the additional tasks undertaken, and the Principal Member was correct to say that she required evidence of what those tasks were.
The Principal Member concluded, after a careful review of the evidence, that there was no medical support for the proposition brought by the appellant that the condition in his left arm resulted from overuse. The Principal Member did not simply accept the respondent’s submission that specific tasks needed to be identified. She accepted the “general tenor” of the submission, which was that there needed to be evidence of the tasks the appellant was performing, together with expert medical opinion to support the notion that the condition in the appellant’s left arm was caused by performing those tasks. That is a straight-forward proposition which is consistent with the observations expressed in the various authorities discussed above.
The Principal Member did not place a higher burden on the appellant because the appellant’s left upper limb was his dominant arm. She assessed the evidence and reviewed the medical opinions before reaching the conclusion that the appellant’s case was not made out, primarily because of the absence of medical opinion to support the case put forward by the appellant.
The appellant has not made out error as alleged and this ground of appeal fails.
CONCLUSION
The appellant has failed to establish error on the part of the Principal Member and the appeal fails. The Principal Member’s Certificate of Determination dated 16 April 2021 is therefore confirmed.
DECISION
The Principal Member’s Certificate of Determination dated 16 April 2021 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
24 January 2022
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