Grant v Dateline Imports Pty Ltd
[2021] NSWPIC 83
•16 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Grant v Dateline Imports Pty Ltd [2021] NSWPIC 83 |
| APPLICANT: | James Leslie Grant |
| RESPONDENT: | Dateline Imports Pty Ltd |
| PRINCIPAL MEMBER: | Ms Josephine Bamber |
| DATE OF DECISION: | 16 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Lump sum claim; agreed right upper extremity injury; disputed claims in relation to Complex Regional Pain Syndrome and consequential condition in left upper extremity due to overuse; Held- applied Elsworthy v Forgacs Engineering Pty Ltd that whether there is a rateable diagnosis of Complex Regional Pain Syndrome is a matter for a Medical Assessor; right upper extremity injury and Complex Regional Pain Syndrome (affecting the right upper extremity) remitted to the President for referral to a Medical Assessor; award for the respondent in relation to alleged consequential condition in the left upper extremity on the basis that the onus of proof was not discharged; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd applied. |
| DETERMINATIONS MADE: | 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. |
STATEMENT OF REASONS
BACKGROUND
James Leslie Grant, the applicant, was employed with the respondent, Dateline Imports Pty Ltd, from 1 July 1995 as a storeman and packer. On 31 July 2015 he was required to pull and lift a heavy box weighing approximately 22 kg. He says while he was doing this the corner of the box fell onto his right hand, pinning it in hyperextension for a short time. He says he thought the pain he experienced in his hand would go away, but after about two weeks he reported the injury to the respondent as the pain had not resolved. Injury to the right upper extremity is accepted by the respondent. Mr Grant is left hand dominant.
Mr Grant alleges that he developed a condition in his left arm as a consequence of the injury to his right arm because he says he had to use his left upper limb a lot more to make up for the pain in his right arm. He also claims he has developed complex regional pain syndrome (CRPS). In these proceedings Mr Grant is seeking lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) alleging permanent impairment to the right upper extremity, left upper extremity and CRPS.
The respondent’s workers compensation insurer, AAI Limited trading as GIO, issued a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 15 September 2020 denying liability for the alleged consequential condition in the left upper extremity[1]. A further notice was issued on 20 November 2020 also disputing that Mr Grant had developed CRPS[2].
[1] ARD p 22.
[2] ARD p 43.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation conference/arbitration hearing before me on 5 March 2021. Mr Bill Carney, counsel, instructed by Ms Eva Przygoda, solicitor, appeared for Mr Grant, who was present. Ms Lyn Goodman, counsel, instructed by Ms Naomi Tancred solicitor appeared for the respondent. The proceedings were conducted by telephone due to the COVID-19 situation.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents filed by the respondent dated 15 January 2021 attaching report of Dr Reiter dated 8 January 2021.
Oral evidence
There was no oral evidence. Both counsel made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.
FINDINGS AND REASONS
Relevant legal principles
The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[3] wherein Kirby P (as his Honour then was) said (at [461G]) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at [462E]):
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[3] (1994) 35 NSWLR; (1994) NSWCCR 796, Kooragang.
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Deputy President Roche’s decision in Kumar v Royal Comfort Bedding Pty Ltd[4] is authority for the proposition that Kooragang is the test to determine if a consequential condition arises from a work injury. As Kirby P (as he was then) stated in Kooragang, an injury can set in train a series of events.
[4] [2012] NSWWCCPD 8, Kumar.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[5] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[5] [2008] NSWCA 246, Nguyen.
Treating medical evidence
Because of the complicated nature of Mr Grant’s case, I have summarised the treating medical evidence in chronological order below.
On 19 August 2015 an x-ray was performed on Mr Grant’s right hand at the request of Dr Han. The clinical history on the report says “swollen PIP joint, never fractured. ? arthritis”. The radiologist found the right hand was normal on x-ray but recommended an ultrasound to check for synovitis[6].
[6] ARD p 197.
On 2 September 2015 at Dr Han’s request an ultrasound was undertaken of Mr Grant’s right middle finger with findings of a partial tear to the ulnar collateral ligament of the PIP joint[7].
[7] ARD p 209.
On 15 January 2016 an x-ray and ultrasound was undertaken of Mr Grant’s right hand with the radiologist reporting the maximum pain seems to be at the radial aspect of the index finger of the MCP joint and at the ulnar aspect of the 5th MCP joint. No specific abnormality was noted on the ultrasound[8].
[8] Reply p 1.
On 23 February 2016 Dr Wayne Viglione, orthopaedic surgeon, examined Mr Grant at the request of Dr Han. He noted that Mr Grant was left hand dominant. He records a detailed history of the injury on 31 July 2015. On examination the doctor found physically the PIP joint of his right long finger was swollen and painful when squeezed. The MP joint was also painful. Dr Viglione stated that he could not at that time make a diagnosis about the wrist pain. He recommended an MRI scan be undertaken of the wrist and hand and said he found the ultrasound report confusing[9].
[9] ARD p 200.
On 10 March 2016 an ultrasound guided injection was performed on Mr Grant’s right middle finger by Dr Fain who said there was some symptomatic relief[10].
[10] ARD p 205.
On 31 March 2016 Dr Viglione reviewed Mr Grant and discusses the MRI scan. He advised Dr Han that he did not have a good diagnosis as to what is causing the ongoing symptoms particularly around the MP joints and wrist. He states that there could be an element of chronic pain and found no significant synovitis. At that time Mr Grant was working normal duties[11].
[11] ARD p 202 and Reply p 4.
On 26 August 2016 Associate Professor Paul Bird, rheumatologist, reported to Dr Han and Dr Viglione. He advised that Mr Grant had been successfully treated for juvenile arthritis in his early teens. He found that the work injury caused post traumatic synovitis[12].
[12] ARD p 228 and Reply p 5.
On 9 September 2016 Rehab Management Pty Ltd conducted a workplace assessment and reported to the insurer on 19 September 2016[13]. The report has been read by me but not summarised as it does not assist to determine the issues in dispute, as have the reports dated 20 October 2016[14] and 27 October 2016[15].
[13] Reply p 7.
[14] Reply p 18.
[15] Reply p 22.
On 24 October 2016 Associate Professor Paul Bird prescribed a course of Prednisone due to Mr Grant’s ongoing symptoms[16]. On 16 November 2016 Associate Professor Bird advised that there was no improvement following the Prednisone and so he diagnosed the ongoing right-hand symptoms had a neuropathic component and he prescribed Lyrica[17].
[16] ARD p 230 and Reply p 21.
[17] ARD p 231 and Reply p 26.
On 5 December 2016 Associate Professor Bird increased the Lyrica dose and commented that part of Mr Grant’s symptoms are neuropathic in nature and are part of a chronic pain disorder post injury[18].
[18] ARD p 232 and Reply p 27.
On 18 January 2017 Associate Professor Bird reported to Dr Han having reviewed Mr Grant again. He recommended he attend Southern Hand Therapy and expected that in the long term his symptoms would improve, but the hand therapy would aid recovery[19].
[19] ARD p 233 and Reply p 28.
On 20 February 2017 Hayley Coleman, physiotherapist from Southern Hand Therapy, reported to Associate Professor Bird, noting Mr Grant is left hand dominant. She notes that Mr Grant has returned to full duties and his wrist has improved, hardly bothering him but the right middle finger gets painful and stiff. She was giving Mr Grant a home program of stretching and strengthening exercises[20].
[20] ARD p 179 and Reply p 29.
On 19 June 2017 Hayley Coleman reported to Associate Professor Bird and advises she has been treating Mr Grant conservatively for a “TFCC strain/? tear at the wrist”[21]. TFCC refers to the triangular fibrocartilage complex[22].
[21] ARD p 180.
[22] ARD p 71 and Reply p 35.
On 28 August 2017 Hayley Coleman reported to Associate Professor Bird that Mr Grant’s right middle finger is no longer of concern. There was still right wrist pain. She noted the presence of a painful click and clunk with a grind test of the TFCC and she recommended an MRI be undertaken to investigate the TFCC integrity[23].
[23] ARD p 181.
On 4 September 2017 Associate Professor Bird reported to Dr Han that
“Although his symptoms are certainly improving there is continuing pain affecting the right wrist overlying the ulnar border of the wrist. There was tenderness of the ulnar styloid and ulnar collateral ligament. His hand therapist has raised a possibility of a TFCC tear and I think that arranging an MRI with these circumstances is a reasonable suggestion.[24]”
[24] ARD p 234 and Reply p 36.
On 10 September 2017 an MRI scan was performed on Mr Grant’s right wrist at the request of Associate Professor Bird it revealed degenerative change in the scapholunate articulation and some ganglia[25].
[25] ARD p 90.
On 23 October 2017 Hayley Coleman reported to Associate Professor Bird recommending a hand surgeon examine Mr Grant and consider the MRI scan to ascertain if further investigation of the scapholunate ligament is indicated because she says Mr Grant’s wrist pain has not improved with treatment[26]. On the same day Ms Coleman sent a report to the insurer with this recommendation stating she was concerned that a lesion sustained to the scapholunate ligament at the time of the work injury is causing poor joint biomechanics and early signs of osteoarthritis[27].
[26] ARD p 184 and Reply p 37.
[27] ARD p 183.
On 9 November 2017 Hayley Colman wrote to Dr Nabarro for a further opinion regarding the continued right wrist pain following the work injury on 31 July 2015. The report incorrectly notes that Mr Grant is right hand dominant[28].
[28] ARD p 185 and Reply p 38.
On 11 December 2017 Dr Han referred Mr Grant to Dr Nabarro noting that he was still struggling with his hand/wrist injury sustained at work in 2015[29]. Dr Nabarro sent Dr Han a report that day[30]. He advises that clinically Mr Grant has a tear of the TFCC which was not obvious on the MRI scan, although there were signal changes. Dr Nabarro noted that Mr Grant had difficulty weight-bearing on his right hand and his pain was exacerbated by ulnar deviation of the wrist, lifting objects, forearm rotation and movements. At the time he was back at work doing normal duties, coping well, although Dr Nabarro noted he lifted a kettle at work the week before and it increased his pain for seven days.
[29] ARD p 92.
[30] ARD p 97 and Reply p 40.
On 18 December 2017 Dr Nabarro completed the insurer’s questionnaire regarding the proposed arthroscopic debridement of the right wrist and the anticipated recovery from the procedure.[31] The doctor replied that the recovery time depended on if he had to perform TFCC repair.
[31] ARD p 93.
On 4 January 2018 Associate Professor Bird reported to Dr Han about the MRI scan and noted that Dr Nabarro was going to perform surgery to see if there was a tendon tear[32].
[32] ARD p 235 and Reply p 42.
On 15 January 2018 Dr Nabarro reviewed Mr Grant and reports to Dr Han that he has ongoing pain in the right wrist and has developed a burning pain over the dorsum of his right hand with radiation to the right elbow. Dr Nabarro states this occurs intermittently with no precipitating factors[33].
[33] ARD p 98 and Reply p 43.
On 19 January 2018 Dr Nabarro performed the arthroscopic debridement and repair of the TFCC on Mr Grant’s right wrist. The operation report records findings of Grade 3 degenerative changes present on the proximal pole of the capitate and STT joint. (The STT joint is the scaphoid, trapezium and trapezoid joint[34]). The operation report also refers to ulno-carpal synovitis and a peripheral tear of the TFCC. The doctor noted that the work was the direct cause of the injury and Mr Grant would need hand therapy and could commence suitable duties in 12-14 weeks[35].
[34] ARD p 76.
[35] ARD p 99 and Reply p 44.
On 29 January 2018 Dr Nabarro reviewed Mr Grant but there appears to be a typographical error in his report to Dr Han. The doctor refers to the left wrist and I infer he meant the right wrist from the context and reference to incisions. (Both counsel agreed with this interpretation). It was noted that Mr Grant would be fitted with an elbow cast and in five weeks would start active range of motion exercises[36].
[36] ARD p 100 and Reply p 45.
On 19 March 2018 Dr Nabarro reviewed Mr Grant who was complaining of some pain and clicking in his wrist. There was slightly altered sensation over the dorsum of the small finger[37].
[37] ARD p 101 and Reply p 46.
On 1 May 2018 Hayley Coleman reported to Dr Nabarro about Mr Grant’s continuing pain and physiotherapy treatment[38].
[38] ARD p 186 and Reply p 47.
On 2 May 2018 Dr Nabarro reviewed Mr Grant who reported pain on certain activities, but the doctor recorded he was using his right hand for most activities. He had not yet returned to work. The doctor said he could return to work on 14 May 2018 with a 5 kg lifting limit with wrist in neutral rotation and work four hours per day, four days per week to start. Dr Nabarro said he could gradually increase his hours and activities as tolerated[39].
[39] ARD p 102 and Reply p 48.
On 12 June 2018 Dr Nabarro reported to Dr Han that three weeks earlier Mr Grant woke with severe pain in his right wrist, which was difficult to localise but mainly dorsal. He was taking Mobic and wearing a splint most of the time. Mr Grant had noticed clicking in the wrist and said his pain was exacerbated by most activities[40]. On 12 June 2018 Hayley Coleman reported the same issue to Dr Nabarro[41].
[40] ARD p 103 and Reply p 49.
[41] ARD p 187.
On 20 June 2018 Dr Nabarro reviewed Mr Grant after an MRI scan had been performed. It showed synovitis dorsally and over the radial aspect of the STT joint. The TFCC repair appeared intact. The doctor advised he recommended an ultrasound guided steroid injection of the right wrist. Mr Grant was to wear a splint and continued with his current restriction of 1 kg lifting limit[42].
[42] ARD p 104 and Reply p 50.
On 5 July 2018 Dr Fain performed the ultrasound guided injection of the right wrist it was found that the ECB tendon sheath was mildly thickened at the level of the first dorsal compartment but there was a negative Finkelstein’s test. When the injection was performed it was thought there was some degree of fibrosis and adhesions as the injected substance did not flow easily. It was noted that following the injection there was incomplete symptomatic relief[43].
[43] ARD p 113.
On 23 July 2018 Hayley Coleman reported to Dr Nabarro about Mr Grant’s ongoing physiotherapy treatment and pain[44].
[44] ARD p 188 and Reply p 51.
On 30 July 2018 Dr Nabarro reported that Mr Grant had no improvement following the injection and complains of pain over the radial aspect of the wrist. On examination the doctor found tenderness over the first dorsal compartment with positive Finkelstein’s test. An injection of Celestone and Lignocaine at this site was undertaken. Dr Nabarro states that Mr Grant presented with signs and symptoms of right de Quervain’s tenosynovitis[45].
[45] ARD p 106 and Reply p 53.
On 30 August 2018 Dr Nabarro reviewed Mr Grant and reported to Dr Han that he has had an improvement of pain since the injection but still has discomfort when lifting objects. He also has pain over the dorsal and ulnar aspects, and he had pain at work that day when he twisted his wrist. The Finkelstein’s test remained positive. Dr Nabarro said Mr Grant may require release of the right first dorsal compartment[46].
[46] ARD p 107.
On 8 October 2018 Julia Wild, hand therapist, noted that Mr Grant was in significantly more pain in the right wrist. It was worse since a long drive, although he reported minimal use of right wrist during the drive. She noted that the wrist was not swollen on examination and that Mr Grant reported the pain from the wrist radiates to the middle finger and up the shoulder as well as in the mid-wrist and ulnar wrist. She adds that Mr Grant is getting pain in his left forearm and wrist, which he feels is doing all the work. Ms Wild found he was tight in the EDC and ECRL/B. She said she would ask the insurer to approve treatment of the left arm for overuse[47].
[47] ARD pp 190 and 271 and Reply p55.
On 22 October 2018 Dr Nabarro reviewed Mr Grant and reported that he has ongoing pain in his right hand, wrist and elbow and was currently taking Endep, Lyrica and Endone with minimal relief. Dr Nabarro found global restriction of wrist movement and limitation of flexion of the ring and middle fingers. There was tenderness over the first dorsal compartment, radio-carpal joint and TFCC. The doctor referred him for a Bone and SPECT CT scan, review by a pain specialist and to have a second opinion from Associate Professor Gumley[48].
[48] ARD p 108 and the referral to A/Prof Gumley is at p 115.
On 25 October 2018 Dr Han reported to the insurer[49]. He advises that Mr Grant has debilitating pains in his right wrist and hand, and he cannot lift things freely. It is noted that Mr Grant is on restricted duties and hours. He advises the insurer that he has been Mr Grant’s family doctor since 1996 and Mr Grant has always been a stoical character. Dr Han stated that he has no belief or suspicion that the protracted pains are due to other medical or psychological issues.
[49] ARD p 224 and Reply p 57.
On 29 October 2018 Dr Tow Chan Yeow reported on the Bone Scan and advised Dr Nabarro of her opinion that the scan features are not supportive of complex regional pain syndrome and she thought the increased tracer uptake in the right carpal bones particularly at the radial aspect could represent post-surgical changes or post traumatic synovitis[50].
[50] ARD p 114 and Reply p 59.
On 2 November 2018 Associate Professor Gumley examined Mr Grant. In his clinical notes he states the features fit more with Complex Regional Pian issues and less with mechanical causes. He recommended a plain x-ray and bone scan and evaluation by a pain management specialist[51]. In a report of the same date of Dr Nabarro he repeated these findings and said the reason why he thought that Complex Regional Pain Syndrome was more likely was because on the MRI scan there did not appear to be significant pathology to explain his global symptoms[52].
[51] ARD p 194.
[52] ARD p 195 and Reply p 61.
On 13 November 2018 Dr Nabarro reviewed Mr Grant and reported to Dr Han that the scan showed increased uptake in the mid-carpal joint. He adds “the findings were not thought to be diagnostic of a Complex Regional Pain Syndrome”[53].
[53] ARD p 109.
On 13 December 2018 Dr James Yu, pain specialist, examined Mr Grant at the request of Dr Nabarro. Mr Grant complained of a crushing, burning pain that sometimes radiated down to his fingers and up to his elbow. The doctor has the history that the pain is associated with swelling, redness, change of temperature to warm, hypersensitivity and limited range of movement. He was wearing a right wrist brace. At the time he was working four hours per day, four days per week. The doctor notes psychometric testing revealed Mr Grant had severe depression, low self-efficacy and significant catastrophising. He also noted Mr Grant had significant sleep disturbance with his pain condition. Mr Grant was taking Lyrica and Endone.
Dr Yu found on examination that the range of movement of Mr Grant’s right wrist and fingers was globally restricted. He also found swelling, red skin discolouration and warm change of skin temperature on his right wrist and hand. Dr Yu noted that the regional bone scan of 29 October 2018 showed no evidence of CRPS. Dr Yu stated that he was arranging for a stellate ganglion block to address his wrist and hand pain with sympathetic dysfunction. He also recommended a multidisciplinary pain management programme consisting of pain psychology and physiotherapy treatment. He prescribed an anti-neuropathic cream to be applied to his right hand and arm and his medication regime continued[54].
[54] ARD p 210 and Reply p 63.
On 19 December 2018 Dr Yu reported to the insurer he explained that the right wrist and hand are swollen, warm to touch, red discolouration and associated with allodynia and hyperalgesia consistent with sympathetic nerve dysfunction[55].
[55] ARD p 212 and Reply p 64.
On 8 February 2019 Mei Jun Tran, psychologist, reported to Dr Yu that psychological sessions had commenced with Mr Grant to support him to improve his ability to cope with his pain[56].
[56] ARD p 214 and Reply p 72.
On 5 March 2019 Dr Yu reported to Dr Nabarro that Professor Gumley thought there may be an ongoing structural problem in his right wrist. Dr Yu noted that Mr Grant presented with persistent right wrist and right arm neuropathic pain associated with sympathetic dysfunction[57].
[57] ARD p 215 and Reply p 73.
On 11 April 2019 Dr Nabarro reported that Mr Grant had ongoing pain in his right wrist and has stopped all his pain medication and reported pain in his hand, shoulder and neck. He has difficulty using his right hand for most activities. Dr Nabarro states “He is using his left hand for more activities and has developed pain in his left hand and wrist.”[58]
[58] ARD p 110 and Reply p 77.
On 23 May 2019 a Functional Capacity Evaluation was undertaken by Trudi Crapp, physiotherapist of Rehab Management. It was found that Mr Grant had functional limitations of his right hand/upper limb and it was stated there was prime use of the left hand to complete most tasks requiring upper limb function[59].
[59] Reply p 78.
On 3 June 2019 Dr Yu reported to Dr Han that Mr Grant had presented with persistent neck and right upper limb pain, associated with sympathetic dysfunction. The doctor again noted complaints of swelling, red discolouration and warm temperature on the right arm. The range of movement of the right shoulder was limited to 90° forward flexion and abduction. There was some hyperalgesia elicited on light palpation of the right arm. Dr Yu adds that Mr Grant has “started complaining of left hand pain, most probably due to overcompensation.[60]”
[60] ARD p 218 and Reply p 74.
At the time of Dr Yu’s examination Mr Grant was working four hours per day, four days per week. As his pain was worsening, he started taking Endone again and he was restarted on Lyrica for his neuropathic pain and sleep disturbance.
On 4 June 2019 Dr Yu reported to the insurer recommending a series of right stellate ganglion blocks with ultrasound guidance[61].
[61] ARD p 219 and Reply p 92.
On 27 August 2019 Rehab Management conducted an Assessment of Activities of Daily Living and reported to the insurer on 3 September 2019[62]. It is noted on page 4 of that report that Mr Grant reported that he was unable to lift heavy weights with his right arm as a result of pain and typically favours his dominant left hand when lifting and carrying items.
[62] Reply p 93.
On 7 November 2019 Dr Yu reported to Dr Han that Mr Grant did not notice any significant improvement after the stellate block injection. He noted that Mr Grant was attending physiotherapy utilising a “graded motor imagery programme for his right upper limb CRPS.” At that time Mr Grant was working four hours per day, two days per week. Dr Yu adds that Mr Grant has ongoing catastrophising and fear avoidance associated with his pain condition and so he prescribed Cymbalta as an anti-neuropathic agent[63].
[63] ARD p 221 and Reply p 75.
On 12 November 2019 Dr Han reported to the insurer advising that Mr Grant has become frustrated and depression has set in and he has lost confidence in Dr Yu. Dr Han sought approval to refer Mr Grant to another pain management clinic. He also noted that Mr Grant’s left hand had been affecting him as well[64].
[64] ARD p 226.
On 16 December 2019 Dr Han issued a referral to Western Sydney Pain Centre. He referred to the work injury to the right hand but advised that it is complicated as he has pains in both arms now[65].
[65] ARD p 227.
On 21 January 2020 Dr Ho, Pain and Rehabilitation Specialist of the Western Sydney Pain Clinic, reported to Dr Han[66]. Dr Ho found swelling in the right upper limb which was slightly colder on the right side. He states that this suggests some sudomotor and vasomotor changes. He found significant reduced active range of motion of the right wrist and hand. He noted that Mr Grant was unable to form a fist and there was significant reduced power grip and pincer grip in the right upper limb. He found significant superficial allodynia in the right hand and wrist and mechanical allodynia over the right upper limb with some dysaesthesia. He said the neurological examination was unremarkable in the left upper limb. Dr Ho sets out various treatment options.
[66] Reply p 104.
On 10 March 2020 Dr Ho reported again to Dr Han[67] discussing medication options and recommending pain self-management strategies and a pain psychologist.
[67] Reply p 106.
On 3 April 2020 the insurer made a work capacity decision that Mr Grant had no current capacity for work and they listed the injury on that notice as “right hand chronic pain syndrome[68]”.
[68] Reply p 109.
On 23 April 2020 Dr Han reported to the insurer that Mr Grant reported increasing pains and disabilities in both arms and hands, which are painful and he finds it difficult to carry out activities of daily living and he recommended an urgent OT assessment be undertaken to find solutions to help him[69].
[69] Reply p 113.
On 10 June 2020 Dr Ho reported to Dr Han[70]. As in his other reports under the heading “Pain Issues” the doctor lists the following:
“1. Chronic neuropathic right UE pain secondary to CRPS type 1
2. Chronic neuroplastic left UE pain secondary to central sensitisation
3. Refractory to multiple treatment
4. Maladaptive pain coping with poor self efficacy and some adjustment disorder”
[70] Reply p 119.
Dr Ho discusses the treatment of Mr Grant and on 15 July 2020 reported again to Dr Han[71] confirming his recommendation that Mr Grant taper off opioid medications.
[71] Reply p120.
On 26 November 2020 a right shoulder x-ray and ultrasound was performed at the request of Dr Han which revealed very limited range of movement[72].
[72] ARD p 272.
On 30 November 2020 a CT scan of the cervical spine was performed at the request of Dr Han. The clinical history on the scan report is “shoulder stiffness and neck stiffness ? impingement”. No disc protrusions were noted, but the radiologist says the left C6 nerve root is compressed[73].
[73] ARD p 273.
Dr De Torres
Dr Howard De Torres is a hand, plastic and reconstructive surgeon who has been qualified by Mr Grant’s solicitors and has provided a medico-legal report dated 6 April 2020. The doctor states:
“With regard to the left arm, he did not complain of disability, and as this is his dominant it would be hard to substantiate compensatory overuse. Also, there have been no notes supplied that to substantiate complaints regarding the left hand[74].”
[74] ARD p 60.
He also states that Mr Grant “did not complain to him about any problems with his left arm, shoulder or hand and gave no indication of problems in the left upper limb[75].”
[75] ARD p 62.
It is actually hard to glean from Dr De Torres’s report his diagnosis regarding the right upper extremity. He finds 35% whole person impairment (WPI) using the Tables in Chapter 16 of American Medical Association Guides to the Evaluation of Permanent Impairment 5th Edition (AMA 5) based on range of movement.
Dr Breit
Dr Breit is an orthopaedic surgeon qualified by the insurer who has provided reports dated 16 March 2017[76], 5 August 2020[77] and 13 August 2020[78].
[76] Reply p 30.
[77] Reply p 122.
[78] Reply p 130.
In his first report Dr Breit has a history of the injury and treatment. On his examination the doctor found “a little quite subtle swelling over the proximal interphalangeal joint of the right middle finger” and he thought there was some residual minor thickening of the dorsal tissues. Dr Breit states there is discomfort rather than tenderness. There was no tenderness in the right wrist but some 10° loss of flexion compared to the uninjured side. Dr Breit diagnosed post-traumatic synovitis and said the mechanism of injury was responsible for the symptoms Mr Grant was experiencing then. He described the injury as a crushing injury. He said there was no underlying inflammatory disease.
Dr Breit advised the insurer that the joint would be irritable for some time. He said it may feel fine for several months and then he will tweak it in the wrong direction and there will be some pain for several weeks. He said this cycle could repeat over a couple of years.
In his report dated 5 August 2020 Dr Breit took an updated history about Mr Grant’s treatment since he last saw him. He said he did not have the details of Dr Nabarro’s surgery before him. He records that Mr Grant reports his left dominant hand shakes and he cannot write anymore. He advised his right hand is not good and is constantly painful radiating up to the right shoulder, scapula and the neck with diminished movement. Dr Breit noted that Mr Grant told him he cannot cut his fingernails on either hand and has difficulties with the toilet and to dress and undress. He was complaining of back and right hip pain.
Dr Breit states that he encountered Mr Grant outside his building before the appointment and noticed he was holding his telephone in his left hand and manipulating it without difficulty. He said Mr Grant appeared quite cheerful and talkative in the elevator. Dr Breit says when he called him into his office Mr Grant held his right hand in his jacket pocket and appeared depressed and constantly complained about a variety of pain and difficulties with all activities. He said Mr Grant’s left hand shook when he was talking about it shaking, but it was distractible at which time the hand ceased shaking. Dr Breit also states there was significant variation in ranges of movement with claimed restrictions in the left hand. I note Mr Grant disputes Dr Breit’s comments in his second undated statement[79].
[79] ARD p 7.
Dr Breit also referred to restrictions in the right hand but said the degree of clenching to make a fist was also somewhat variable. The doctor sets out his examination findings, including that there is some discolouration in the right hand. He says he found signs of right arm disuse because the arms measured the same.
In any event, Dr Breit made the diagnosis that Mr Grant has CRPS type 1 of the right upper extremity however, he states it is complicated by inconsistency, invalidism and maximisation. He found the employment was a substantial contributing factor to that diagnosis. Dr Breit found no permanent impairment in the left upper extremity or neck. In relation to the right upper extremity he assessed Mr Grant in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment- 4th Edition (which he just refers to as the SIRA Guides). Dr Breit found the assessment could only be made by using Chapter 1.36 of the Guidelines which refers to inconsistent presentation and permits the doctor assessing to modify the impairment rating and explain the reasons for the modification. Dr Breit refers to the inconsistencies he detailed under his examination and states they mean that the range of movement cannot be accepted as reflecting the impairment[80]. He assessed Mr Grant as having 30% WPI.
[80] Reply p 129.
On 13 August 2020 Dr Breit supplied a supplementary report to respond to the insurer’s question as follows:
“If Dr Breit needs to provide comment as to how he obtained 30%WPI for the right elbow/ wrist and hand.
If he is unable to confirm an assessment of permanent impairment without justification and explanation then no assessment should be made.The SIRA Guides, in particular with respect to Chapter 1, Paragraph 1.36, which I am unfortunately forced to use too often because of the manner in which people present.
Under examination, I carefully documented the many inconsistencies and also provided photographs confirming the inconsistencies.
I also pointed out there was evidence of real pathology. I compared the ranges
noted by me and by others as further evidence.
It is self-evident that utilising range of movement is not appropriate and stated so.
The only option is to assess impairment based on the overall presentation, that which
was noted by others and that which is noted on informal assessment, disproving the
claimed restriction.There is no ‘measurement’ that can be used other than clinical experience and expertise, which is the basis for utilisation of Paragraph 1.36.
The CRPS Guidelines to Evaluation are irrelevant just as are the normal range of movement guidelines where they are superseded by SIRA Guides, Chapter 1,
Paragraph 1.36.”
Dr Cochrane
Dr Neil Cochrane is a neurosurgeon qualified by Mr Grant’s solicitors who has provided two reports dated 20 August 2020[81]. His assessment was conducted by video due to Covid-19 restrictions. However, he had a spinal and neurological examination pro-forma completed by physiotherapist Mr Sam Alolepa dated 13 August 2020.
[81] ARD pp 69 and 86.
Dr Cochrane has a history about the work accident on 31 July 2015 and states that although Mr Grant is left hand dominant, he was still required to use his right hand frequently and work activities aggravated his symptoms. Dr Cochrane details the treatment undertaken by Mr Grant and notes the development of left arm symptoms.
Dr Cochrane concludes that the history, examination findings and correspondence from the treating practitioners are entirely consistent with the development of a complex regional pain syndrome evolving in the injured right upper limb. He adds that there appears to be a central pain phenomena emerging with neuropathic pain in the left upper limb, particularly in the region of the hand, wrist and forearm. Dr Cochrane says that Mr Grant also appears to be developing pain from the right scapula descending towards the right low back and right hip region, which may be an extension of the CRPS.
Dr Cochrane refers to a letter from Dr James Ho dated 29 Janaury 2020 and states that:
“Dr Ho diagnoses chronic neuropathic right upper extremity pain secondary to CRPS Type 1, but also describes chronic neuroplastic left upper extremity pain secondary to central sensitisation. I would concur with the diagnosis of Dr Ho. I also note that Dr Ho reports that your client has been refractory to multiple treatments and is concerned of the possibility of "maladaptive pain coping with poor self-efficacy and some adjustment disorder" which may necessitate an IME psychiatrist view to quantify the psychological injury your client may suffer concurrent with the physical injury”.
The doctor expresses a view on causation that the initial work injury on 31 July 2015 has caused the CRPS and chronic pain in both upper limbs. In his separate permanent impairment evaluation report, Dr Cochrane states that Mr Grant suffers from CRPS Type 1 affecting his right upper extremity and a chronic pain syndrome with pain, swelling and restricted movements affecting his left dominant upper extremity, particularly the wrist and hand on the left side.
Dr Cochrane did his assessment only using AMA 5th Edition and does not refer to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment – 4th Edition (the Guidelines). He has stated that in AMA 5 there are two methodologies that can be used, being the Tables in Chapter 13 or those in Chapter 16. However, Part 5.7 of the Guidelines states “Complex regional pain syndrome types 1 and 2 are to be assessed using the method in Chapter 17 of the Guidelines”. Dr Cochrane has not done this in this report.
Associate Professor Allan Molloy
Associate Professor Molloy is an anaesthetist and pain management specialist qualified by the insurer and provided a report dated 28 August 2020[82]. In the doctor’s history he has recorded an incorrect timeline of the relevant dates relating to the injury. The doctor recorded in detail Mr Grant’s complaints including to the left wrist and hand, including that his left hand shakes. His examination findings are reproduced below:
“On examination he had limitation of the right shoulder movement with flexion extension 90°. There was fixed flexion of the right elbow at 10°. There were minimal active movements of the right hand. There was a full range of passive movements, but this was painful. Power was reduced to 4/5 in all groups of the hand. Normal power in the left hand. There were no signs of CRPS on the right side except for some coolness but no sweating. There were no cutaneous manifestations of CRPS. The skin was good and there were prominent veins. Lumbar spine movements were not guarded.”
[82] Reply p 132.
Associate Professor Molloy says that Mr Grant needs a bone scan to confirm the diagnosis. He adds that “[t]here are some symptoms and signs of complex regional pain syndrome in his right arm he appears to meet that diagnosis.” He notes that this diagnosis has been documented by Dr Ho.
In response to question 2 posed by the insurer Associate Professor Molloy advises that he considers that the pain in the left arm, hand and wrist are not causally related to the injury of 31 July 2015. However, Associate Professor Molloy when stating this seems to have only considered the left limb in terms of whether there is CRPS in that limb and not whether there is a consequential condition from overuse.
Dr Reiter
Dr Loretta Reiter, rheumatologist, was qualified by the respondent and has provided medico-legal reports dated 28 October 2020[83] and 8 January 2021[84]. In her first report Dr Reiter records the following examination findings:
“Whilst examining his right hand, I noted that it turned red in comparison with his left hand. He had allodynia. He did not have any swelling of his hand, but he did have focal swelling of his wrist. He had normal temperature and hydration, as well as normal nails, hair distribution and skin texture.”
[83] ARD p 47 and Reply p 142.
[84] Application to Admit Late Documents p1.
She also sets out the range of motion for both hands, wrists, elbows and shoulders. In relation to the left limb he found full range of motion in each part except for the wrist where there was 50° flexion and extension and radial deviation of 20° and ulnar deviation of 30°.
Dr Reiter diagnosed that Mr Grant injured his right wrist and right middle finger PIP joint at work on 31 July 2015. She adds “[a]s a consequence, he has developed features of complex regional pain syndrome (CRPS)”. Dr Reiter refers to the Guidelines Table 17.1 in relation to the diagnostic criteria for CRPS. She finds:
“(i) Continuing pain, which is disproportionate to any causal event - Yes.
(ii) Must report at least one symptom in each of the four following categories:
(a) Sensory: Reports of hyperaesthesia and/or allodynia – Yes (Pain with light touch).
(b)Vasomotor: Reports of temperature asymmetry and/or skin colour changes and/or skin colour asymmetry – Yes. (Occasionally his right hand will turn red and occasionally he feels that his right hand is colder than his left hand).
(c) Pseudomotor/oedema: Reports of oedema and/or sweating increased or decreased and/or sweating asymmetry – No. (Although he reports swelling, it is quite specific and localised to his forearm and wrist area, which relate specifically to his wrist injury, and not CRPS, as the swelling observed in CRPS is diffuse and will involve the hand).
(d) Motor/trophic: Reports of decreased range of joint motion and/or motor dysfunction (tremor, dystonia and/or trophic changes (hair, nails, skin) – Yes. (Decreased range of motion of the joints in his right upper limb).
He has one symptom in 3 categories, not all 4, which is required to fulfil the diagnosis of CRPS.
(iii) Must display at least one sign at time of evaluation of the four Categories:
(a) Sensory: Evidence of hyperalgaesia and/or allodynia (to light touch and/or deep somatic pressure and/or joint movement) – Yes. (He had marked allodynia of his right upper limb).
(b) Vasomotor: Evidence of temperature asymmetry and/or asymmetric skin colour changes – Yes. (During the consultation I noted that his hand changed colour from normal to red).
(c) Pseudomotor/oedema: Evidence of oedema and/or sweating asymmetry – No. (He had normal hydration of both hands with only focal swelling around the dorsal aspect of his right wrist in keeping with his right wrist injury, not the diffuse swelling that one observes in cases of CRPS).
(d) Motor/trophic: Evidence of decreased active joint range of motion and/or motor dysfunction (tremor, dystonia) and/or trophic changes (hair, nails, skin) – Yes. (He had a reduced range of motion of all the joints in his right upper limb).
Has one sign in 3 categories, not all 4, which is required to fulfil the diagnosis of CRPS.
(iv) There is no other diagnosis to explain the signs and symptoms.”
Therefore, notwithstanding Dr Reiter diagnosed that Mr Grant does have some features of CRPS due to his workplace injury, he does not meet the criteria for assessable permanent impairment assessment, for the reasons she has given above.
Dr Reiter finds his widespread pains are in keeping with a diagnosis of fibromyalgia, but she says he does not meet that diagnosis in accordance with the American College of Rheumatology.
She adds that if he did meet the criteria for fibromyalgia, noting that it can evolve over time, Dr Reiter expresses the view it would not be due to the injury to the right wrist and right middle finger PIP joint. She does not really explain why, excepting she quotes from three articles. The first dismisses a causal association with trauma and says the data to support such a link is based only on a patient’s recall and attribution, which she classes as very low quality data, not constituting scientific evidence. The second article quoted by Dr Reiter states that a review of the medical records of patients with fibromyalgia show in 90% of cases complaints before the injury. However, Mr Grant’s medical records do not show such symptoms before the injury. The third article does apparently support a link with trauma. But Dr Reiter says the articles those authors draw upon are fraught with many limitations and study bias. I am not persuaded that these articles provide the comprehensive support that Dr Reiter infers.
I am of the view, that given Dr Reiter is the only doctor to suggest fibromyalgia as a diagnosis, caution should be adopted accepting her opinion, particularly as she has accepted there was a traumatic injury to the right wrist and right middle finger PIP joint, and that Mr Grant has features of CRPS.
Furthermore, the respondent asked Dr Reiter regarding Dr Cochrane’s diagnosis of CRPS and she says she disagrees with it, yet she did find features of CRPS. Dr Reiter just could not find a rateable diagnosis in accordance with the Guidelines. Dr Cochrane did not even apply Table 17.1 of the Guidelines. Dr Reiter adds that Mr Grant’s prognosis is poor due to the features that he does have of CRPS.
Dr Reiter then states in view of Mr Grant not meeting the criteria for CRPS, she has assessed his WPI using the range of motion method for his right wrist and right middle finger PIP joint. She assessed Mr Grant as having 15% WPI. She found that the left upper extremity was not injured but she found reduced range of motion which she attributed to fibromyalgia that is not work related.
Dr Reiter in her second report refers to Dr Breit’s assessment of 30% WPI using Chapter 1.36 of the Guidelines. She then sets out her findings under Table 17.1 and notes Dr Breit’s corresponding findings. She adheres to her prior assessment that there is no rateable CRPS because all the criteria are not met. In response to the final question from the respondent regarding Dr Breit’s method of assessment, she said that she did not have any difficulty with obtaining Mr Grant’s range of motion of his joints and his upper limbs. She says she did not observe any inconsistency.
Determination- CRPS
Mr Grant’s case is quite complicated, as is demonstrated by the different approaches taken by the medico-legal experts. The insurer has conceded that Mr Grant sustained an injury to his right wrist and right middle finger PIP joint. However, while the insurer has disputed that Mr Grant has CRPS, Dr Breit diagnosed that Mr Grant has CRPS Type 1 and Dr Reiter found that Mr Grant’s prognosis is poor due to the features that she identifies of CRPS. Associate Professor Molloy also stated that “[t]here are some symptoms and signs of complex regional pain syndrome in his right arm he appears to meet that diagnosis” and he references Dr Ho’s documentation of the presence of CRPS.
Clearly, there is a difference between someone having features of CRPS and a rateable permanent impairment under the Guidelines for CRPS. Chapter 17.5 of the Guidelines says, “Table 17.1 is used to determine if complex regional pain syndrome (CRPS) is a rateable diagnosis” (my italics). Dr Reiter, applying these Guidelines, finds there is no rateable impairment.
Mr Grant’s counsel referred to the decision by Arbitrator Egan in Elsworthy v Forgacs Engineering Pty Ltd[85].
[85] [2017] NSWWCC 64, Amended Certificate of Determination, Elsworthy.
At [106] in Elsworthy Arbitrator Egan states:
“Accordingly, while it is clear from Bindah, Bishop, and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, that the Commission must determine liability before a matter may be referred to an AMS for impairment, if the condition referred for assessment is CPRS, once it is so referred the AMS is bound to diagnose the existence of the condition by application of the prescriptive definition in cl 17.5 and Table 17-1. This is so regardless of any determination of the Commission. Additionally, that diagnosis by the AMS must be made on the day of assessment applying Chapter 17, and the AMS is not concerned with, or at least not bound by, whether it may have been diagnosable in the past. If the Commission was required, in determining liability, to make a finding of the existence or otherwise of CRPS specifically, and did so find, the AMS is bound to re-determine the diagnosis before any impairment may be assessed.”
From [171]-[173] Arbitrator Egan considered that the Arbitrator’s role was to make a determination whether the applicant suffers pain in any of the specified limbs and whether it is as a result of the accepted work injury, and then make the referral to the Medical Assessor directed to particular limbs and not the whole body. This task is simpler in Mr Grant’s case because his counsel only seeks referral for the CRPS in relation to the right upper extremity. Also, there is no real contest on the evidence that the symptoms in the right upper extremity are as a result of the injury on 31 July 2015.
The evidence of the treating doctors reveals the ongoing discussion by them as to whether there was CRPS.
i) On 29 October 2018 Dr Tow Chan Yeow reported on the Bone Scan and advised Dr Nabarro of her opinion that the scan features are not supportive of complex regional pain syndrome and she thought the increased tracer uptake in the right carpal bones particularly at the radial aspect could represent post-surgical changes or post traumatic synovitis[86].
ii) However, on 2 November 2018 Associate Professor Gumley states the features fit more with Complex Regional Pain issues and less with mechanical causes.
iii) On 2 November 2018 Dr Nabarro said the reason why he believed that Complex Regional Pain Syndrome was more likely was because on the MRI scan there did not appear to be significant pathology to explain Mr Grant’s global symptoms[87]. Although on 13 November 2018 Dr Nabarro reported that the scan showed increased uptake in the mid-carpal joint. He adds “the findings were not thought to be diagnostic of a Complex Regional Pain Syndrome”[88].
iv) The evidence from Dr Yu about CRPS includes on 19 December 2018 reporting to the insurer he explained that the right wrist and hand are swollen, warm to touch, red discolouration and associated with allodynia and hyperalgesia consistent with sympathetic nerve dysfunction[89]. On 3 June 2019 Dr Yu again noted complaints of swelling, red discolouration and warm temperature on the right arm and on 7 November 2019 Dr Yu noted that Mr Grant was attending physiotherapy utilising a “graded motor imagery programme for his right upper limb CRPS.”
v) Dr Ho on 21 January 2020 found swelling in the right upper limb which was slightly colder on the right side. He states that this suggests some sudomotor and vasomotor changes and in his reports to Dr Han under the heading “Pain Issues” the doctor includes “Chronic neuropathic right UE pain secondary to CRPS type 1”
[86] ARD p 114 and Reply p 59.
[87] ARD p 195 and Reply p 61.
[88] ARD p 109.
[89] ARD p 212 and Reply p 64.
Mr Grant’s counsel submits these findings coupled with the medico-legal assessments do support the presence of a CRPS condition and following Elsworthy it is a matter for a Medical Assessor to determine how it should be assessed on the day of his or her examination and application of the criteria in Chapter 17 of the Guidelines. He submitted it is not a condition that a legal Member should determine.
The respondent’s counsel submits on the basis of Dr Reiter’s opinion the Commission should not be satisfied that Mr Grant has CRPS and that only the right arm should be referred to the Medical Assessor for assessment of permanent impairment.
In relation to Elsworthy, the respondent’s counsel says the decision does not have to be followed and that decision was stating that the assessment of permanent impairment of CRPS was a matter for a Medical Assessor but the legal Member has to determine liability, whether there was a chronic pain syndrome in the right upper extremity related to the injury. The respondent submitted that its case is based on Dr Reiter and counsel says she concedes that Dr Reiter “has probably gone too far”, but she submits that the other doctors have not dealt with it.
I have found the respondent’s submission in relation to Elsworthy unconvincing. I find it is a comprehensive and persuasive decision and I agree with its conclusion that the issue of whether there is a rateable diagnosis of CRPS should be made by a Medical Assessor. Accordingly, I propose to remit the matter to the President for referral to a Medical Assessor to assess permanent impairment in relation to CRPS affecting the right upper extremity. As noted, Mr Grant’s counsel stated that he did not seek a referral of the CRPS in relation to any other body part. I find Dr Breit and Dr Reiter have accepted the symptoms in the right upper extremity were caused by the injury on 31 July 2015.
Determination – left upper extremity
The respondent submitted when a person is left hand dominant there needs to be evidence as to what he does with the arm over and above what is normal. The respondent’s counsel submitted that such evidence is lacking in Mr Grant’s case. It was submitted that the closest evidence on this topic is from Mr Grant’s friend, Daniel Poole. However, she submits that there is only reference to mowing the lawn, doing the washing and basic personal hygiene and that one would expect that Mr Grant would have used his dominant left arm for these tasks in any event. It was submitted that there is no real evidence as to the facts to support an overuse syndrome. The respondent also relied upon Dr De Torres’s report of 6 April 2020 wherein the doctor says Mr Grant did not complain of disability in relation to the left arm and, as it is his dominant arm, it would be hard to substantiate compensatory overuse.
Therefore, the respondent submits that this supports the opinions of Dr Breit, Associate Professor Molloy and Dr Reiter and she argues that they should be accepted that there is no consequential left arm condition due to the right arm injury.
Counsel submitted the first mention of left arm pain seemed to on 8 October 2018 when Julia Wild, hand therapist, noted Mr Grant was getting pain in his left forearm and wrist, which he feels is doing all the work. I note Ms Wild records at this time that she found Mr Grant was tight in the EDC and ECRL/B and she said she would ask the insurer to approve treatment of the left arm for overuse[90]. However, the respondent says this was an isolated complaint and there are no ongoing complaints about the left wrist in her subsequent notes.
[90] ARD pp 190 and 271 and Reply p 55.
The Respondent submitted the only body part to be sent to a Medical Assessor should be the right upper extremity.
However, there are a number of treating doctor references to the left arm developing problems, as follows:
i) On 11 April 2019 Dr Nabarro states “He is using his left hand for more activities and has developed pain in his left hand and wrist.”[91]
ii) On 23 May 2019 the Functional Capacity Evaluation of Ms Crapp, physiotherapist of Rehab Management, found that Mr Grant had functional limitations of his right hand/upper limb and it was stated there was prime use of the left hand to complete most tasks requiring upper limb function[92].
iii) On 3 June 2019 Dr Yu reported that Mr Grant has “started complaining of left hand pain, most probably due to overcompensation.[93]”
iv) On 27 August 2019 Rehab Management found that Mr Grant was unable to lift heavy weights with his right arm as a result of pain and typically favours his dominant left hand when lifting and carrying items.
v) On 12 November 2019 Dr Han reported to the insurer that Mr Grant’s left hand had been affecting him as well[94].
vi) On 16 December 2019 Dr Han issued a referral to Western Sydney Pain Centre. He referred to the work injury to the right hand but advised that it is complicated as he has pains in both arms now[95].
vii) On 23 April 2020 Dr Han reported to the insurer that Mr Grant reported increasing pains and disabilities in both arms and hands, which are painful and he finds it difficult to carry out activities of daily living and he recommended an urgent OT assessment be undertaken to find solutions to help him[96].
viii) Dr Ho in his reports under the heading “Pain Issues” refers to chronic neuroplastic left UE pain secondary to central sensitisation. He does not diagnose a consequential condition in the left arm due to overuse.
[91] ARD p 110 and Reply p 77.
[92] Reply p 78.
[93] ARD p 218 and Reply p 74.
[94] ARD p 226.
[95] ARD p 227.
[96] Reply p 113.
Mr Grant in his statement dated 14 December 2020 at [19] says he developed injury to his left upper extremity as he has been required to use his left upper limb a lot more to make up for the pain in the right arm. He describes developing pain in the left wrist that radiates to the palm of his left hand. At [20] he says he was told he had CRPS including in the left limb.[97].
[97] ARD pp 2/3.
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. Dr Ho does not diagnose a consequential condition in the left upper extremity due to overuse.
The history Dr Cochrane took from Mr Grant about the left upper limb is as follows:
“As such, Mr Grant states he had approximately 18 months of progressive dominant left upper limb symptoms which feels like an overuse-type phenomenon or a "spreading of pain" from the right side to the left. He developed spasms of his left upper limb and could no longer hand write with his dominant left hand.”
Dr Cochrane then refers to Dr Yu having diagnosed a chronic pain syndrome with central sensitisation in the dominant contralateral left upper limb. In his conclusion Dr Cochrane refers to CRPS evolving in the injured right upper limb and he adds,
“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.[98]”
[98] ARD p 76.
Dr Cochrane was asked in question numbered 7 (b) if the employment with the respondent is the cause of the condition? He replied he “as a consequence of the CRPS, a chronic central pain syndrome and central sensitisation now affecting his dominant left upper limb”. The doctor does not attribute the cause to an overuse of the limb. He adds there has been “unpredictable series of central pain responses in the central nervous system having evolved.”
However, Dr De Torres found no consequential condition in the left upper extremity due to overuse. Mr Grant’s counsel stated that Dr de Torres’s opinion should not be relied upon in relation to this aspect because the doctor did not know about the references to symptoms in the left upper limb, such as recorded by Ms Wild. None of the other medico-legal experts find a consequential left upper extremity condition, although they do not seem to consider that thesis. Dr Breit states in his opinion there is nothing to indicate any impairment in the left upper extremity. Associate Professor Molloy states that he considers that the pain in the left arm, hand and wrist are not causally related to the injury on 31 July 2015. Dr Reiter considers the left upper extremity in terms of part of an evolving fibromyalgia.
Therefore, unlike with the CRPS where the respondent doctors found Mr Grant had features of that condition and I could rely upon their diagnoses, they do not support the presence of a consequential condition in the left upper extremity.
Given Dr Cochrane has diagnosed a chronic central pain syndrome affecting the left upper limb as a result of the CRPS, I find there is no basis to make a finding of a left upper extremity consequential condition from overuse. This was the case run by Mr Grant in these proceedings.
Mr Grant 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 Mr Grant 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 Mr Grant 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.
Accordingly, I find that Mr Grant has not established he has suffered a consequential condition in his left upper extremity as a result overuse related to the injury on 31 July 2015.
SUMMARY
I find that the applicant has not established a consequential condition in his left upper extremity from overuse as a result of the injury to the right upper extremity on 31 July 2015.
I find 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.
I order that 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.
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.
Josephine Bamber
PRINCIPAL MEMBER
16 April 2021
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